U.S. District Judge Aileen Cannon will hear former President Donald Trump’s argument that his classified documents case should be thrown out.

The classified documents case is one of four major indictments against the former president and is widely regarded as one of the most credible. Trump has decided to face the charges head-on and undercut the basis for them in the first place.

Here is everything you need to know about Trump’s attempt to have his classified documents case thrown out.

What is Trump being charged with?

The saga began on Aug. 8, 2022, when FBI agents searched Trump’s Mar-a-Lago compound. The search came as a shock to many and represented the first major legal challenge to Trump since leaving office, coming nearly a half year before his first indictment. He was indicted on 40 charges one year after the search.

Trump is accused of mishandling classified documents from his administration, taking them to his private residence after leaving office, and being uncooperative with government officials trying to retrieve them.

He wasn’t charged with violating the Presidential Records Act, passed in 1978 in response to former President Richard Nixon destroying tapes he kept during his administration. While presidential records taken during the administration were previously considered private property upon leaving office, the Presidential Records Act redesignated them as presidential property, requiring they be turned in once leaving office.

Though Trump wasn’t accused of violating the Presidential Records Act, special counsel Jack Smith and the former president are pinning their arguments on their interpretations of the law.

What is Trump’s argument?

Trump argues the Presidential Records Act gives him full discretion over what to designate as personal records as opposed to presidential ones and that the judiciary has little authority in the matter.

“When passing the PRA, ‘Congress was also keenly aware of the separation of powers
concerns that were implicated by legislation regulating the conduct of the President’s daily
operations,’” Trump’s 17-page filing last month read, quoting a prior case. “Congress also ‘limited the scope of judicial review and provided little oversight authority for the President and Vice President’s document preservation decisions.’”

“‘The PRA does not confer any mandatory or even discretionary authority on the Archivist
to classify records’ as Presidential Records or Personal Records,” it added, quoting Judicial Review.

What is the prosecutors’ response?

Smith countered by disputing his characterization of the Presidential Records Act in a 29-page filing.

“The PRA does not exempt Trump from the criminal law, entitle him to unilaterally declare highly classified presidential records to be personal records, or shield him from criminal investigations — let alone allow him to obstruct a federal investigation with impunity,” the prosecutors wrote.

They added that even if Trump’s characterization was correct, it was irrelevant, as the charges filed against Trump fall mostly under the Espionage Act.

“Even if the raft of highly classified documents that Trump took from the White House to Mar-a-Lago were somehow categorized as ‘personal’ under the PRA, that would not render his retention of those documents ‘authorized’ for purposes of Section 793(e),” the prosecutors wrote.

Could the challenge succeed?

Cannon was appointed by Trump, making her likely more sympathetic than the other judges covering Trump’s indictments. However, many experts have questioned Trump’s argument, especially as many of the documents found were classified, which the president is unable to deem personal.

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Jason Baron, former director of litigation at the National Archives, questioned whether Trump made a meaningful effort to go through the records in his possession and properly designate which were personal and presidential.

“The argument that merely by transferring boxes to Mar-a-Lago converts the legal status of their contents from presidential records to personal is absurd,” he told the Washington Post. “There is no evidence of reasonable efforts being taken to separate personal from presidential records. A president cannot designate records about White House official business — classified or unclassified — as personal.”