Judge Aileen Cannon (Senate Judiciary Committee via AP), former White House Senior Advisor and Director of Speechwriting Stephen Miller. (Photo by Brandon Bell/Getty Images)
A legal group headed by former Trump White House senior advisor Stephen Miller asked the judge in the Mar-a-Lago prosecution on Friday for permission to participate in the case as an amicus curiae, or friend of the court, claiming its “expertise” in the “abuse” of the Presidential Records Act (PRA) by the National Archives (NARA) may be of assistance to the former president.
Noting that the Special Counsel’s Office and Jack Smith expressed no view on the motion, America First Legal Foundation (AFL) stated its goal was to support former President Donald Trump’s bid to throw out the Espionage Act indictment based on the PRA.
Touting its own “scholarship on” and investigations into the “weaponization” of NARA, AFL claims to have “uncovered” proof that NARA committed an “unlawful abuse of executive authority” in cahoots with the Biden White House and the DOJ.
“AFL’s investigations of NARA confirmed that the Federal Bureau of Investigation obtained access to the ’15 Trump boxes’ through a ‘special access request’ from the White House on behalf of the Department of Justice. Because NARA’s action, which AFL uncovered, appeared to be an unlawful abuse of executive authority, AFL requested the Inspectors General of NARA and the Department of Justice to investigate,” the motion said. “Moreover, AFL has published a white paper detailing why—as a matter of constitutional law, the PRA, and historical practice—the President has absolute authority over presidential papers.”
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In an accompanying brief, the would-be amicus curiae asserted that the Trump indictment should be thrown out because NARA’s criminal referral to the DOJ ran afoul of the Administrative Procedure Act.
“NARA’s failure to provide advance warning of its claimed referral authority or to outline the parameters of the conduct that would trigger this authority means that the indictment should be dismissed,” the brief concluded.
AFL urged Judge Cannon to grant it leave so it can support Trump’s attack on the indictment.
“While there are no Federal or Court Rules that specifically discuss the making of amicus submissions in criminal cases at the trial level, ‘the district court, however, has the inherent authority to appoint amici curiae, or ‘friends of the court’ to assist it in a proceeding,”” the group said.
National security lawyer Mark Zaid, who represented the whistleblower in Trump’s Ukraine impeachment, called AFL’s claimed expertise on the issue a “joke.”
This “expert” insight is a joke.
— Mark S. Zaid (@MarkSZaidEsq) March 1, 2024
Reached for comment by Law&Crime, Zaid compared grappling with AFL’s legal theory to arguing with someone who believes the earth is flat.
“The problem with actually trying to address the substantive theory such as offered by AFL is akin to arguing with someone in 2024 that the world is not flat or engage in debate over whether the moon is made of cheese,” Zaid said.
Read the motion here.
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