Did Obama Just Get Trump Off the Hook?

Just when you thought 2024 couldn't possibly get any weirder — yes, I know it's still only January — a secret Barack Obama memo could prove the undoing of special counsel Jack Smith's case against Donald Trump.

America First Legal — whose suit against the DHS's Cybersecurity and Infrastructure Security Agency "unearthed new docs showing that the deep state knew the risks of mass mail voting in 2020 but censored these criticisms as 'disinformation'" — has another bombshell today.

"A secret Obama memo, the Presidential Information Technology Committee (PITC), regarding control of Presidential records could change everything in the DOJ’s politicized prosecution of Trump," the organization announced Tuesday on Twitter/X.

By executive fiat, Obama created the PITC following a 2014 Russian hack of the president's Executive Office computer network. The committee "includes representatives of the Departments of Defense and DHS, among others" and "established the President’s exclusive control over information resources and systems provided to the President," according to America First Legal.

Because the memo relied upon the Federal Records Act’s definition of “information system” as resources organized for the “use” and “disposition” of “information”, the memo gives the President exclusive control over information he receives.
This is relevant to what a President may reasonably believe about information given to him while in office.
Second, and related, if information stored on the PITC network formed the basis for Special Counsel Jack Smith’s prosecution of former President Trump, that evidence should have been disclosed to the former President and may be relevant to his liability.

America First goes on to explain that "Obama’s PITC memo may have created a reasonable belief in President Trump that he, in fact, had such authority" to "possess or retain... classified documents." That's contrary to Smith's 37-count indictment against Trump for "willful retention of national defense information; conspiracy to obstruct justice; withholding a document or record; corruptly concealing a document in a federal investigation," among other charges.

It's always been my understanding that as the chief executive, the president enjoys unlimited authority to declassify information — with a wave of the hand, wafting burning sage over the documents, or just by thinking about it really hard.

The issue of retaining documents is where the issue might get trickier, but as America First Legal noted, these new revelations are consistent with the organization's "whitepaper contending that the President of the United States has absolute authority over presidential papers."

Going further, "if the records Trump allegedly destroyed are still preserved within the EOP or the U.S. Department of Defense as part of PITC-created information systems, then other claims in the indictment may be baseless."

If America First's analysis is correct, Trump is on sound legal footing on possession of whatever documents he kept at Mar-A-Lago, and whatever he may have destroyed could have been just copies of what is still on the PITC systems authorized by none other than Barack Obama.

Somewhere in an 8,500-square-foot home in Washington's tony Kalorama neighborhood, a former president must be seething.