Stephen Miller, Trump’s dime-store Goebbels, submitted an amicus brief to Judge Aileen Cannon in Trump’s Florida theft of documents case. In the brief, Miller does not argue that Trump is innocent. Instead, he claims that the National Archives and Records Administration (NARA) had no authority to report a crime to the Department of Justice. And therefore, Cannon should dismiss the charges.
Special Counsel Jack Smith — and every other sane American — thinks that is absurd. And Smith wasted no time calling Miller and his legal group, America First Legal Foundation, “wrong.” Which is how you call someone a “fucking idiot” in a legal brief. Let us parse how Smith took Miller to the woodshed and explained how Miller’s effort was “without merit.” (I invite the reader to translate that into English as well.)
Smith starts his rebuttal by outlining Miller’s case. (I have removed the case references and legal identifiers as this piece is for non-lawyers. For Smith’s full brief, click HERE)
The Government respectfully submits this response to the amicus curiae brief filed by America First Legal Foundation (“America First Amicus”) in Support of President Trump’s Motion to Dismiss the Indictment Based on the Presidential Records Act (“PRA”).
1 The brief’s principal argument rests on three contentions:
- (1) that a federal agency cannot make a criminal referral to the Department of Justice in the absence of a statute or regulation explicitly authorizing the agency to do so.
- (2) that the National Archives and Records Administration (“NARA”) lacks such explicit statutory or regulatory authorization
- and (3) that any indictment that derives from a criminal referral lacking such explicit statutory or regulatory authorization must be dismissed.
All three of those contentions are wrong.
In short, Miller claims NARA cannot report a crime to the DoJ because Congress has not passed a law authorizing them to do so. And because NARA acted without that authority, Cannon should throw the charges out.
In response, Smith started with a visit to reality,
First, a federal agency is free to report suspected criminal activity to the Department of Justice by way of a criminal referral, and no statute or regulation authorizing such a referral is needed. Indeed, the Department of Justice routinely receives referrals, in various forms, from any number of entities and individuals, including members of the public. Such referrals have never required statutory or regulatory authorization.
Smith makes the obvious point. Federal agencies — and everyone else — do not need anyone’s permission to report a crime. “If you see something, say something.”
Next, Smith points out that the law does not allow people to make things up.
America First Amicus cites no authority for the proposition that an agency cannot make a criminal referral unless a statute or regulation explicitly authorizes it to do so.
He goes on to show that Miller’s legal theory would allow people to mug NARA employees without NARA being able to report the crime to anyone. Or to do so, the agency would first have to let the public weigh in on the matter before instituting a regulation allowing it.
And such a rule would be unworkable in practice. Under amicus’s theory, for example, if a person illegally carries a firearm into a NARA facility or forcibly threatens a NARA employee, NARA is powerless to report that criminal conduct to the FBI, and instead must first engage in notice-and-comment rule making to promulgate a regulation authorizing it to make such a referral.
The SNL sketch writes itself. Monty Python would also have been good on the topic. Smith highlights further absurdities. He explains that while the law requires all federal agencies to report federal record violations to NARA, under Miller’s legal theory the NARA would not be allowed to report those violations to the DoJ. What is NARA supposed to do with them?
Indeed, under amicus’s theory, although federal regulations require agencies to report “any unauthorized removal, defacing, alteration or destruction” of federal records to NARA, NARA is prohibited from referring such information to the Department of Justice—even when it shows a clear violation of federal criminal law, because any such referral would violate the Administrative Procedure Act.
Smith ends this section.
The Court should reject this unsupported and untenable theory
The Special Prosecutor piles on. He points out that not only is Miller wrong (a fucking idiot) in theory, he is also wrong in practice. NARA not only has the right, it also has the responsibility to report anyone breaking federal criminal law — which is a reminder to Miller that his man Trump is not in Court for a parking violation.
Second, even if it were true (which it is not) that an agency is powerless to make a criminal referral absent explicit statutory or regulatory authorization, NARA had such authorization here. NARA has an Inspector General, who is not only authorized but indeed required to “report expeditiously to the Attorney General whenever the Inspector General has reasonable grounds to believe there has been a violation of Federal criminal law.”
Smith then reminds Miller and Judge Cannon that NARA had reasonable grounds to believe Trump was a federal criminal. And based on that, they reported a criminal to the police.
NARA had reasonable grounds to believe that there had been a violation of federal criminal law, and, through its Inspector General, it made a referral to the Attorney General, as the statute provides, by alerting the relevant supervisors within DOJ.
Smith then twists the knife by reminding the Court that Trump is not an ordinary document thief. His stock in trade is the nation’s secrets. And anyone who sees someone acting against American interests has the right to report that national security threat to the DoJ.
Regulations applicable to NARA’s involvement with classified national security information, set forth a further basis for authorization. Those regulations provide that “[a]ny person who has knowledge that classified information has been or may have been lost, possibly compromised or disclosed to an unauthorized person(s) shall immediately report the circumstances to an official designated for this purpose,” and that “[w]henever a criminal violation appears to have occurred and a criminal prosecution is contemplated, agency heads shall use established procedures to ensure coordination with [t]he Department of Justice.”
Smith goes on to illustrate how NARA knew Trump had retained stolen property. Then he points out that even if there was a “procedural defect” that provides no reason to dismiss the case.
Third, any purported procedural defect in the referral process could not possibly provide a basis to dismiss the indictment. Courts have routinely rejected efforts to challenge a facially valid indictment on the grounds that the evidence supporting the grand jury’s decision was inadequate, incompetent, or obtained in violation of a constitutional privilege.
Smith then moves from the general to the specific. He dismisses Miller’s objection as peripheral to the case.
That principle applies with even more force here, since the purported defect has nothing to do with the validity of the grand jury’s probable cause determination and instead focuses on the referral procedures that prompted the opening of an FBI investigation, which in turn led to the opening of a grand jury investigation, and eventually to the acquisition of evidence that was presented to the grand jury.
He again points out that Miler is making stuff up.
America First Amicus cites no case suggesting that a purported defect of this nature could be a basis for dismissal.
He says Miller has it backward.
To the contrary, “Review of facially valid indictments on such grounds ‘would run counter to the whole history of the grand jury institution[,] [and] [n]either justice nor the concept of a fair trial requires [it].’”
He adds the four cases Miller cites are irrelevant.
America First Amicus cites four cases for the proposition that “[m]any courts have held that an agency’s violations of the Administrative Procedure Act are grounds for dismissing a criminal indictment.” But those cases are entirely inapposite, as they each involved a post-trial or post-plea APA-based challenge to a regulation upon which the defendant’s criminal liability rested.
Smith then gives specifics of why Miller’s four cases do not apply. And he wraps it up for Cannon in simple language. In doing so, he goes to the heart of Trump’s argument that he is not a crook. And calls bullshit on Trump’s claim the Presidential Records Act (PRA) authorized his theft.
The arguments set forth by America First Amicus are without merit and provide no support to the motion to dismiss the indictment on the basis of the PRA.
Smith leaves Judge Cannon with two options. Follow the law. Or have the 11th Circuit Appeals Court explain to her why she is “wrong.”
