A nonprofit legal group is claiming that an obscure memo by former President Barack Obama in 2015 to protect the White House from foreign cybersecurity threats could be key in Donald Trump's defense in his classified documents case.
America First Legal, led by former Trump adviser Stephen Miller, on Jan. 24 filed a Freedom of Information Act request with the Pentagon's Defense Information Systems Agency to understand the Presidential Information Technology Committee that was created by Obama in March 2015.
In late 2014 and early 2015, hackers allegedly breached the network of the Executive Office of the President. Between those events, Obama created, through executive action, the committee, according to a news release from America First Legal.
"Unlocking this secret of the Obama presidency is not only important for public transparency, it has clear implications for whether the government may have failed to disclose necessary information to the defendant as part of its prosecution of former President Trump — and this information may significantly affect the evidentiary support relied upon in indicting and continuing to prosecute a former President," America First Legal lawyer Dan Epstein said in the release. "The American people deserve to know the truth behind this secretive memo and how it has been used."
According to the group's FOIA request, Obama created a White House information technology director and executive staff for the committee, dubbed the PITC. Among the executive committee members is the director of the White House Military Office, a component of the Department of Defense.
"The memorandum makes clear that the Defense Secretary shall designate or appoint a White House Technology Liaison for the White House Communications Agency," the FOIA request reads. "This memorandum required that all records created or received by the EOP be stored on systems held at the DOD. The PITC memorandum created the legal fiction that although records were physically possessed by DOD, they were subject to the President's exclusive control."
Trump has pleaded not guilty to a 37-count indictment issued by Department of Justice special counsel Jack Smith regarding Trump's handling of classified documents at his Mar-a-Lago estate in Florida. A superseding indictment led to three more charges to which Trump pleaded not guilty. The first 32 counts in the indictment relate to Trump's alleged unauthorized retention of national defense information.
"But if the relevant documents were subject to the scope of PITC, then Trump, pursuant to the memorandum, had exclusive control over the document he received, as opposed to the EOP or any other part of the Federal Government," the FOIA request states. "The PITC memorandum arguably establishes exclusive control of EOP documents in the person of the President."
Other counts in the superseding indictment accuse Trump of destroying records "with intent to impair the object's integrity and availability for use in an official proceeding,"
"If, however, any relevant document was subject to the PITC memorandum, then its availability has been unaffected, and it remains in the possession of the United States federal government," the FOIA request states. "Additionally, in order to establish that President Trump destroyed these records with the intent to impair their availability, the United States would need to show that President Trump believed his copies to be the only ones in existence."
The Department of Justice declined to comment in an email to Newsmax.