By Tobi Raji · The Washington Post (c) 2024
A Trump-appointed federal judge in Texas has rejected the state’s long-shot attempt to temporarily block special counsel Jack Smith from destroying records related to his investigation into President-elect Donald Trump, calling the state’s argument “unserious.”
Texas Attorney General Ken Paxton (R) had asked U.S. District Judge Matthew J. Kacsmaryk to order Smith to preserve the records, including any communications Smith’s office had with a “range of outside parties” and information regarding the cellphones assigned to Smith’s team, among other items, according to the complaint.
Such requests can be a routine first step in congressional inquiries, law enforcement investigations and litigation. Three days after Trump was elected president, House Judiciary Chairman Jim Jordan (R-Ohio) and Rep. Barry Loudermilk (R-Georgia) asked Smith’s office to preserve all records of his classified documents and election interference probes, an early sign that they were planning to investigate his work.
But Paxton does not have any clear jurisdiction to launch such an investigation. He said in his lawsuit that he had requested the records under the Freedom of Information Act and that he was concerned Smith has destroyed, is destroying or plans to destroy the records. As proof, Paxton cited “widely shared photos” showing a paper-shredding truck parked outside Justice Department headquarters in Washington.
Kacsmaryk dismissed Paxton’s claim on Monday, noting that the truck could have been there for a variety of reasons.
“This claim is unserious,” Kacsmaryk wrote in the four-page order. “Defendants could shred paper for many legitimate reasons, and Plaintiffs have proffered nothing to suggest more nefarious intentions.”
Paxton’s office did not respond to requests for comment Tuesday morning.
Smith’s federal prosecutions of Trump are winding down now that Trump is returning to the White House, because Justice Department policy has long prohibited bringing cases against sitting presidents.
Trump has promised to fire Smith if he doesn’t quit before Inauguration Day and to seek retribution against the prosecutors involved in his criminal cases once he returns to office. Paxton’s lawsuit, filed in a courthouse in the Northern District of Texas where Kacsmaryk is the sole judge, may have been an attempt to join that effort.
Conservative groups and Republican officials like Paxton have targeted Kacsmaryk’s courthouse in a practice called “judge shopping,” knowing any lawsuits they file there will be assigned to the conservative, antiabortion judge and believing that he probably will rule in their favor.
But the Texas judge did not do so. In his lawsuit, Paxton had also argued that the Federal Records Act of 1950 – which governs the collection, retention and preservation of federal records – prohibits Smith from destroying documents related to the special counsel investigation into Trump.
“Under the FRA, federal records may not be disposed or destroyed without authorization from the National Archives and Records Administration,” Paxton wrote. “Prior to destroying any federal record, the head of each agency must submit to NARA a list of any federal records that do not appear to have sufficient value to warrant their continue[d] preservation.”
However, Kacsmaryk said he had no reason to believe Smith was failing to comply with the Federal Records Act. “The Court must presume that, absent evidence to the contrary, Defendants act in accordance with their foregoing duties,” he wrote.