WASHINGTON, D.C. – America First Legal (AFL) has released a previously undisclosed memo from the Obama Administration, which was also utilized by the Trump and Biden Administrations. The memo suggests that the government may have already possessed original copies of the classified documents at the center of Special Counsel Jack Smith’s prosecution against former President Donald Trump.
The documents were obtained through AFL's litigation against the U.S. Department of Defense (DOD). In October 2014, Russian hackers breached the Executive Office of the President (EOP)’s network, prompting President Obama to create the Presidential Information Technology Committee (PITC) via executive action. PITC includes representatives from DOD and Homeland Security and establishes that the President controls all information received through this network.
On April 4, 2024, AFL sued the DOD to compel the release of documents requested under the Freedom of Information Act (FOIA) regarding PITC. Although the PITC executive order was public, it did not provide comprehensive details. Today, AFL has made public a White House memo confirming that DOD has been “operating and maintaining the information resources and information systems provided to the President, Vice President, and Executive Office of the President (EOP).”
This memo indicates that federal records from EOP are preserved on DOD servers in accordance with Obama's order. Consequently, it is likely that a substantial amount of President Trump’s classified documents are stored on these servers.
Section 2.01 of the memo outlines that unclassified records services are provided by the White House Communications Agency, while section 2.06 specifies that classified services are managed by the National Security Council. Section 2.04 acknowledges that all records created or transmitted via these systems are stored at DOD.
Congressional committees with subpoena power can now investigate whether Special Counsel Jack Smith’s claims about Trump unlawfully retaining documents post-presidency hold merit if those documents are actually retained by Biden's administration through PITC.
These findings suggest that many documents Trump is accused of unlawfully retaining were still held by the Executive Branch on DOD servers. Given PITC's stance on presidential control over records, Trump may have believed he had authority over copies stored at DOD, challenging assertions in Smith’s indictment.
Dan Epstein, Vice President of America First Legal stated: “What America First Legal has uncovered after months of investigative work paints an unfortunate picture of the rule of law in Washington... And to now realize that the Biden Administration could have avoided an illegal referral process to recover records... speaks loudly to America: The law protects only those who follow norms of one party.”
Epstein argues this revelation raises questions about why armed agents raided Trump's residence without first verifying relevant records on DOD systems.