Jay Bratt to Chris Kise: You Already Made that Frivolous Presidential Records Act Argument

This post talks about the government’s legal argument against delay in the Trump stolen documents case. This other post talks about the filing’s description of the evidence in the case. 

My favorite part of the government’s reply to Trump’s request to put off his Espionage Act trial indefinitely comes in how they rebut Trump’s argument that there are novel issues that will require more time.

DOJ dismisses Trump’s suggestion that there’s a question about whether the Special Counsel could prosecute him by pointing to the appeal from the key witness protecting Roger Stone, Andrew Miller.

In re Grand Jury, 916 F.3d 1047, 1052–54 (D.C. Cir. 2019), the D.C. Circuit held that a special counsel appointed by the Attorney General has the authority to investigate and prosecute federal crimes.

More hilarious is the way they dismiss the claim that Trump needs a lot of time to make the Presidential Records Act argument he lifted from (noted non-attorney) Tom Fitton. They do so in several ways: noting that the argument really isn’t going to work and that even if they want to try it, the only thing they need to try is the indictment.

But then they note that Trump, with one of his existing counsel — Chris Kise, already made that argument, before Judge Cannon.

As for the impact of the Presidential Records Act on this prosecution, any argument that it mandates dismissal of the Indictment or forms a defense to the charges here borders on frivolous. The PRA is not a criminal statute, and in no way purports to address the retention of national security information. The Defendants are, of course, free to make whatever arguments they like for dismissal of the Indictment, and the Government will respond promptly. But they should not be permitted to gesture at a baseless legal argument, call it “novel,” and then claim that the Court will require an indefinite continuance in order to resolve it.


As with any pretrial dispositive motion, all that is necessary is the Indictment—which the Defendants have had for over a month. And in fact, Trump (including his current counsel) has already briefed in this Court a variation of this argument. See, e.g., No. 22-CV-81294-CANNON, ECF No. 171 (filed Nov. 8, 2022). The legal issues Defendants raise do not justify deviation from a speedy trial date, much less open-ended deferral of considering one.

Jay Bratt went easy on Trump: He doesn’t bother reminding Kise (and Aileen Cannon) how that worked out before the 11th Circuit the last time they tried it.

Ultimately, though, the core nugget of the filing is this: The Speedy Trial Act requires a judge to set a trial date.

Any discussion of setting a trial date must begin with the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161–3174 (the “Act”). The very first sentence of the Act forecloses Defendants’ proposal here:

In any case involving a defendant charged with an offense, the appropriate judicial officer, at the earliest practicable time, shall, after consultation with the counsel for the defendant and the attorney for the Government, set the case for trial on a day certain, … so as to assure a speedy trial.

18 U.S.C. § 3161(a). The Defendants chide the Government for seeking an “expedited” trial (Resp. at 1, 2, 8), but in doing so they have it exactly backward. A speedy trial is a foundational requirement of the Constitution and the United States Code, not a Government preference that must be justified. See U.S. Const. amend. VI; 18 U.S.C. Ch. 208 (captioned “Speedy Trial”).


“That public interest cannot be served, the Act recognizes, if defendants may opt out of the Act entirely,” id., which the Defendants effectively try to do here by requesting an indefinite adjournment of the trial, for a minimum of some fifteen months.1 See Barker v. Wingo, 407 U.S. 514, 519 (1972) (noting the “societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.”).

This filing doesn’t get very deep into Trump’s claims about the election. It side-steps the issues I pointed to — voters’ need to know whether Trump reneged on the promises he made the last time he got elected. It acknowledges picking a jury may be tough but says that’s good reason to get started on it earlier. It even notes that Trump’s busy work schedule, like those of a lot of powerful people charged with a crime, is not an excuse to put off trial indefinitely.

[T]he demands of Defendants’ professional schedules do not provide a basis to delay trial in this case. Many indicted defendants have demanding jobs that require a considerable amount of their time and energy, or a significant amount of travel. The Speedy Trial Act contemplates no such factor as a basis for a continuance, and the Court should not indulge it here.

While I find several of these arguments persuasive, ultimately, it’s unclear whether this filing will work. We’re at the point where we’ll get the first hint of how Judge Cannon plans to approach this case.

But by laying out that she cannot do what Trump has asked, simply delay the case indefinitely, it simplifies her choices.

23 replies
  1. WDC3 says:

    It is disheartening to see this frivolous delay. Judge Cannon should plan on a C3 reversal if she grants Trump’s motion. Can C3 reprimand lower court judges?

    [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. WDC3 is your THIRD username; you have commented 2x as “William Conner” and 1x as “WilliamConner3.” Pick a site standard-compliant username and stick with it as using multiple usernames is sockpuppeting and not permitted. Thanks. /~Rayne]

    • Rugger_9 says:

      I suppose the defense had to try it, but it’s more important what Judge Cannon does with this claim knowing the prior history of this argument. Is she willing to risk that blowback again, even though she’s appointed for life? I think not, and my signal is in the delay she allowed Nauta to get his arraignment in, only 4 days instead of the indefinite one asked for.

  2. David F. Snyder says:

    Excellent synopsis. Sounds like there’s a cautionary message for both Kise and Cannon. After all, this is not a civil matter but a criminal case.

  3. harpie says:

    I like this part:

    [p7/11] The need for CIPA proceedings is also not a justification for a period of uncertain delay. […]

    The two cases Defendants reference as examples of cases involving CIPA that had trial dates further from arraignment do not support their position.

    […discussing those two cases…]

    [p8/11] By contrast, [in Mallory and Hoffman, government employees spying for China and Russia, respectively, the cases were done in a year or less.] […] There is no reason to believe that the CIPA proceedings in this Court would be any less efficient.3

    3 Defendants also twice raise the specter of “secret” evidence and state their opposition to “any facts being concealed from public view . . . .” Resp. at 2, 6. If Defendants intend to seek permission to disclose classified information to the public, that would be the very type of “graymail” CIPA was enacted to prevent. [citations].

  4. Mipiti365 says:

    Marcy, in your italicized descriptor at the top of the post, there seem to be some words missing that render it a bit confusing as to what you meant to say: “This post talks about the government’s legal argument against delay in the Trump stolen documents case says about the evidence.” It lacks words between “case” & “says”… Should that be amended to: “… in the Trump stolen documents case, whereas the other post discusses what the government filing says about the evidence (in this case).”? Hope I got that right- but it does need some words filled in to make more sense. Apart from that, thanks for the nimble and timely analysis.

  5. Amicus12 says:

    One thing to note is that DOJ filed early. Their reply was due on or before Monday, July 17, 2023, one day before the CIPA hearing before the Court on Tuesday, July 18.

    By filing early, DOJ has afforded the Court the ability to address its scheduling proposal, and the defendants’ counterproposal on a complete record, at the earliest date. DOJ has essentially told the Court and the defendants, that they are prepared to argue the scheduling motion on Tuesday, if the Court is of the mind to address that issue. And the Court is of course free to do that if it chooses.

    This is yet another example of DOJ showing that they are prepared to go to trial on their proposed schedule. It’s pedal to the metal, regardless of how others might see it.

    • emptywheel says:

      Thanks! I had thought it felt early but hadn’t looked.

      Excellent point. Plus, by doing it tomorrow, it won’t be a public discussion.

      • bmaz says:

        Oh, absolutely you want to file early, and give defendant the entire weekend and Monday to respond if they feel the need. Response or no, you now have a window to argue it Tuesday.

        As to Peter’s point on “frivolous”(and “spurious”), lawyers allege that routinely, and it doesn’t mean much … unless the court adopts it. Then the other party is in a world of hurt.

  6. Peterr says:

    From the second blockquote above:

    As for the impact of the Presidential Records Act on this prosecution, any argument that it
    mandates dismissal of the Indictment or forms a defense to the charges here borders on frivolous.

    That last word is not chosen lightly. Frivolous arguments get lawyers sanctioned, fined, or even bounced from the practice of law entirely. Which is why, when Bratt goes on like this, Kise et al. ought to be worried:

    The Defendants are, of course, free to make whatever arguments they like for dismissal of the Indictment, and the Government will respond promptly.

    The word “frivolous” is a shot across the bow, indicating what Trump’s lawyers can expect in that promised prompt response. This is Bratt, in polite legalese, saying “You really *don’t* want to go there.”

    Well played.

    • emptywheel says:

      Not least because the 11th circuit just reviewed this. Which may be why Bratt raised the District Court argument, not the 11th Circuit slapdown of it.

  7. P J Evans says:

    PRA says the docs were never ever his to take with him, and he wasn’t charged under it. Bringing it up is spaghetti-throwing.

    • Marc in Denver says:

      44 USC s. 2202: “ The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter.” I don’t see how it me makes a non frivolous argument using the PRA, with that staring you in the face.

      • Shadowalker says:

        Doesn’t help that this case has nothing to do with the PRA. Instead it is about illegally retaining National Defense Information (NDI) documents, among other things. The only link to the PRA is that was the mechanism which led to the discovery that he still had custody of NDI documents after leaving office, because they were amongst the PRA (non-NDI) documents that he freely turned over.

  8. Purple Martin says:

    Recently ran across a short June 27 WaPo piece that is the best supported, jargon-free effort to clearly, efficiently and effectively lay out the rationale for DoJ prosecution of the Documents case, that I’ve read. Seems on-topic here.

    It’s by Sue Gordon, who as principal deputy director of national intelligence from 2017 to 2019, provided Trump with many of his intelligence briefings. In the simplest terms possible, without naming a single statute, regulation, Executive Order or classification label, she makes the clear points of why classified information must be protected and how Donald Trump has proven himself incapable of doing that.

    Here’s a WaPo outside-the-paywall gift link: https://wapo.st/3NPDclQ

    Opinion | Our job was to brief Trump on intelligence. His job was to protect the secrets.
    By Sue Gordon | June 27, 2023 at 5:06 p.m. EDT

    I’ve found it useful to provide the boiled-down essence of several important, easy to understand truths, to several people (Ok, mostly extended Idaho MAGA family) who keep parroting the common Trumpist favorite ‘it’s only a filing issue…a paperwork violation’ line.

    Won’t be any surprise to folks here but it has its value, and the simplicity is both powerful and refreshing.

  9. Operandi says:

    I enjoyed this little “That’s not how this works, that’s not how anything works!” interlude.

    DoJ incredulously saying in the subtext “Do you seriously believe you’re the first ever defendant that thought they could win outright in a pretrial motion? That this makes you somehow special?”

    Defendants’ remaining arguments similarly provide no basis for deferring setting a trial date. First, the prospect that motions might be “fully dispositive” (Resp. at 2) is no such basis, and it is not a factor under the Speedy Trial Act for the Court to consider in deciding whether to grant a continuance. The Defendants cite no case for their proposition, which is unsurprising because again, they have it backward. The Speedy Trial Act requires the Court to set a trial date, and the Federal Rules of Criminal Procedure key the filing of pretrial motions (including dispositive motions under Rule 12) relative to that trial date. See 18 U.S.C. § 3161(a); Fed. R. Crim. P. 12(b)(3) & (c). Defendants would have it the other way around, requiring courts to assess the likelihood of a pretrial motion’s success before the motion is even filed, in order to determine whether to set a trial date. This argument provides no support for Defendants’ request to postpone trial indefinitely.

  10. Spank Flaps says:

    “The defendant doesn’t have time” is a pretty lame excuse.
    My old boss was drawn into a civil case, where he was the architect on a large construction project, where the client (an arsehole like Trump) was suing the contractor.
    My boss owned and ran an architects firm with 30 staff. He had to spend a year, full time, sitting in meetings with his lawyers, or sifting through the project files.
    In the end, the (Trumpian) client lost the case, partly because he had forced his own representative to perjure himself in court.
    My point is, even the innocent parties are forced to drop everything, and devote all their time to a legal case.

  11. ChipOffTheOldBlock says:

    “He doesn’t bother reminding Kise (and Aileen Cannon) how that worked out before the 11th Circuit the last time they tried it.” — if you look at the 11th Circuit decision (https://s3.documentcloud.org/documents/23323344/11th-circuit-mar-a-lago-ruling.pdf), they say, “Indeed, Plaintiff does not press the district court’s theory on appeal. Instead, he argues that the Presidential Records Act gives him a possessory interest in the seized documents. This argument is unresponsive. Even if Plaintiff’s statutory interpretation were correct (_a proposition that we neither consider nor endorse_ [emphasis added]), personal interest in or ownership of a seized document is not synonymous with the need for its return.”

    In other words, they explicitly deliberately punted on making a decision on the merits of that claim (“…a proposition that we neither consider…”) to rule narrowly on the jurisdictional issue. Or is that a misreading of the decision?

    • Shadowalker says:

      They weren’t required to make a decision on that because that was not what the DoJ was appealing. They just added that in as a brushback to plaintiff’s response to the appeal, pointing out its many problems without even having to go there. Not that it would have mattered because the district court erred in applying equitable jurisdiction to even hear the case. Which they point out in the beginning.

      “ This appeal requires us to consider whether the district court had jurisdiction to block the United States from using lawfully seized records in a criminal investigation. The answer is no.”

      • ChipOffTheOldBlock says:

        I understand that the 11th Circuit didn’t need to (and explicitly didn’t) address the PRA claims because they only needed to narrowly rule on the jurisdiction issue. The point I was making was that the problem with Marcy saying “He doesn’t bother reminding Kise (and Aileen Cannon) how that [the PRA claims] worked out before the 11th Circuit the last time they tried it” is that they didn’t “work out” one way or another.

        I’m not saying I think Trump’s PRA arguments here have merit. I am pointing out that contrary to what Marcy said (or at the very least, implied), the 11th Circuit has not actually ruled on the merits of them.

        Nor am I saying that I think they will actually ultimately be decided in Trump’s favor when there is a decision on the merits. Getting to the point of a final decision on the merits of the PRA claims, however, offers Trump’s attorney’s a path to delaying things.

        • bmaz says:

          No, not necessarily. This is criminal, not civil. No interlocutory appeals, save for maybe on CIPA issues.

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