We're joined now by an attorney who used to represent former President Trump in the Classified Documents case, Jim Trustee. Jim, thank you so much for taking time to be with us tonight. Sure thing. You pointed to the presidential Records Act repeatedly as to why this case should never have been brought with arguments like this one. Let's listen.

If the President, under the presidential Records Act, has unfettered authority to do what he wants with documents that he's taken from the White House while President. You look at the presidential Records Act, there is absolutely no basis for saying that bureaucracy rules and the President doesn't have the authority entrusted in him by the voters to possess and to declassify and to hold on to document. Read the presidential records act. There is the ability of any president to deem things as personal, to say, I'm going to keep these as personal.

I wonder, what is your reaction to Judge Canon saying, The presidential records act does not provide a pretrial basis to dismiss.

Well, I agree with that guy we just heard from.

That's good news for him.

But look, what she talked about is at this early juncture of saying, I'm not going to grant it. It's not going to serve as a basis for pretrial dismissal. She is clearly, no matter which side you're on in this litigation, she's clearly struggling with how the interaction goes between the presidential record act, which is a form of immunity for presidents and former presidents, frankly, and how that factors into a trial, how much of it's a legal determination, how much of it is a factual one. So she handed both sides some concern today. The President didn't get the huge win of being off the hook entirely and having to deal with the appeal. But Jack Smith is apoplectic at this point about the notion that the presidential records act has some play in a case involving a former President. I think I stand by my analysis. It clearly does. And that's why they're having all of these shenanigans about jury instructions that have Jack Smith and his underlings very worried about how this trial plays out.

That's your analysis. If that were her firm analysis, she could have stood by it, but she didn't. So what do you attribute that to? Is that her, in your opinion, not wanting to ruffle feathers?

I don't know about ruffling feathers, but it is a standard conservative approach from a judge to say, look, right now I'm just dealing with the four corners of the indictment. And that's what she specifically said in her order. And that means you assume everything is as the state or the prosecution has to say. So if the United States has a very lengthy, as it did in this case, indictment that lays out their theory, it's very hard pre-trial for her to say, I'm going to find factually this is wrong. It's more ripe after she's heard evidence in the case at the conclusion of the government's case or even later than that. And again, she's struggling with a complex issue, I think. But she is, I don't think, doing anything that's crazy from either perspective. She's saying, I want to hear from you guys about the presidential records act, and that is absolutely forbidden territory for Jack Smith. They can't stand the notion that it plays in at all.

Yeah, because we very clearly are going to or very likely going to hear about this again. However, she does note that the counts Trump is charged with make no reference to the presidential records act, nor do they rely on that statute for purposes of stating an offense. Does that matter?

No. I mean, and of course not, because it's a problem. Even the search warrant way The DOJ, when they rated Mar-a-Lago, didn't have a word to say about the presidential record act. I think it's because this is a complete about face by DOJ. If you look back at how they've treated every other president, every modern day president, including Bill Clinton, and the litigation they have with judicial Watch back in the mid '90s about his sock drawer full of tapes. They've always said, Hey, the President or former President has the authority to essentially possess these items and call them personal, either by act or by deed. This is a real about face. I think she's struggling with that on the motion for differential treatment, dismissal for differential treatment, where during her argument, she had some pretty pointed questions about that.

You bring it up here. Jack Smith says this theory came out not from a lawyer, but from the head of Judicial Watch, which is a right wing activist group, and he traces how it was introduced, not as Trump was in discussions with the government, ahead of a surprise search. This isn't something Trump said, Oh, yes, I have these documents, and here's why I think that I can keep them. He didn't mention that he had them. This came out after the search, many months later, not from his lawyers, but after he had gotten this information from a right wing activist. If it was something that Trump really believed or that his legal team really believed, because one of his employees said to Judicial Watch, they did not believe that this was correct analysis, why wouldn't Trump have put it out there?

I don't accept the paradigm, I guess, is the problem. What Jack Smith wants this court to believe is that if you're a former president, you have to announce for all time to everyone on the day you leave office, these are the documents that I possess. I'm deeming these ones personal and these other ones, I'll talk to archives about turning over as presidential. That's just a false narrative, a false model.

With classified documents, you do actually have to do that, though.

Well, not under the presidential records act.

It's a non- Well, there's an executive order that's accepted. It's very clear. It's just legalistic and a to-do list of what you do to declassify it. Trump did not pursue that, as you are well aware.

Well, Declassification is different than the PRA, but let me just say this. I think, and what we've said from the beginning, the people that were representing him a couple of years ago- But classified documents wouldn't be personal records unless they had been declassified. No, it's actually not connected to classification or declassification. It's a totally different paradigm. But let me just finish the thought I was saying, which is we've said from the beginning that the real problem here is document management. We entrust our presidents and former presidents with secrets. We don't wipe their brain clean and say, You can't remember all the things you learned in your four or eight years in office. So the idea that they'd have access or knowledge of these things is something we live with as a society.

I think it's more the issue of sending classified documents someplace where they're not secure, that are not declassified.

You mean like the garage in Delaware, right?

Well, obviously, that's not okay, right? Okay.

Well, maybe it is, maybe it isn't. I don't see a prosecution coming.

A bathroom in Mar-a-Lago, a garage in Delaware, not okay. Those were turned back in, as you are aware, and Trump didn't.

President Trump turned in 15 boxes to to archives who then went out for the first time in history and said, my God, we have to make a criminal referral. We're finding certain documents.

He didn't cooperate. I mean, you're aware of this.

No, the presidential records act absolutely anticipates years of give and take between former presidents and the archivist. The archivist, in this case, was politicized, decided to make a criminal referral, even if there's thousands of classified documents in a warehouse in Illinois under the Obama administration, even though Bill Clinton had really interesting, probably tapes of recordings from the White House, they don't pick that fight. They pick the fight here because they wanted to have criminalization of something that's not criminal under the PRA. And DOJ was more than happy to jump all over that. So again, today's ruling leaves open the issue of exactly how PRA is going to play out. But it won't be something I'd be shocked if there's a mandamus, which is the big threat coming from Jack Smith, that some higher court is going to say, How dare you even contemplate different jury instructions than Jack wants. So we got to watch to see if there's a stay, if there's an appeal, if there's a mandamus. But the idea that the PRA is dead is really, I think, premature.

Many of these things unsettled. And so we will see where they go. Jim, trustee, really appreciate it. Thank you so much.

Thank you.

And I want to turn now to our CNN senior legal analyst and former assistant US attorney, Ellie Honig. Ellie, you just heard what Jim Trustee said. What is your take on this?

So, Brianna, I respect Jim. We were colleagues at DOJ. I disagree on the presidential records act act itself as a defense in this case for two main reasons. The first reason is the facts. There is zero evidence from Donald Trump, from anyone around him, that he ever actually designated these records as personal. I think, notably, none How do his lawyers have ever represented to a court that he actually designated these documents as personal. I heard Jim say, Well, there's not a procedure for that, but you have to do something. There would be some evidence of that. Then separately, I think there's a legal problem with it, which is, first of all, a cannot designate any records he wants as personal. He cannot designate highly sensitive military documents, national security documents as personal, and take them. Finally, even if he could, it doesn't Trump, no pun intended, it doesn't overcome the criminal law against retaining sensitive national security information. So even if this gets to be a defense at trial, I think there's no real merit to it.

So you hear him draw the parallel with the Clinton case, which is something that Trump's defenders have done. And I wonder how you think that holds up.

Very different case. I think it's a poor precedent in this case. First of all, Bill Clinton's case involved notes of his and audio tapes relating to interviews that he gave with an autobiographer, completely different than for example, the documents here, which had to do with war plans in Iran in some instance. Second of all, there was an important procedural difference in the Clinton, what they call the Sox case, because reportedly, he stored the tapes in his Sox drawer, which is a private outside party was trying to force the archives to seize those tapes. Essentially, the federal court said, We don't order the archives. Outside parties don't order the archives what to do. So to me, it's really an inapplicable example.

Where does this lead the timeline of this case, Ellie?

Well, a mess in short. It was already, I think, no way that this case was going to get tried before the election. And now I think we have other pending issues. There is the question that Jim just alluded to about whether Jack Smith might try to go to an appeals court and force the judge's hand. I actually think what the judge did today forecloses that, makes it impossible to do that because the judge said, Well, we're going to decide when the trial happens, and maybe it's something that will go to the jury. You really can't appeal that if you're Jack Smith. And by the way, Brie, this is why I think Jack Smith is concerned with today's ruling. Although he won in the sense that the court did not dismiss the charges. If I'm Jack Smith, and I think Smith feels the same way, I'm very worried about this defense going to a jury because it's confusing, because it's complicated, because it's technical. Prosecutors always want to tell a simple, straightforward story, and frankly, defendants want to muck things up. And as much as I think this defense lacks merit, I do think it could confuse a jury in a way that would worry me as a prosecutor.

Yeah, that may be the case. We may have heard the last of Mandamus, at least for the time being, however. And for that, we may be thankful. Ellie Honick, thank you so much. Appreciate it.

Thanks.