On Thursday, Tom Fitton, the president of conservative activist group Judicial Watch and an informal adviser to former President Donald Trump, was seen by NBC News entering a federal courthouse in Washington, D.C.
That courthouse is where the grand juries under special counsel Jack Smith’s purview meet — and at least one prosecutor from his team was also seen headed into the grand jury area, according to NBC News.
Some observers, remembering the reference to Fitton in the last House Jan. 6 committee hearing, have wondered whether he was there to testify as part of Smith’s Jan. 6 investigation. After all, days before the 2020 election, Fitton prepared a statement for Trump, as shared with Trump aides Molly Michael and Dan Scavino, declaring Trump’s victory on the basis of ballots counted “before the Election Day deadline.” (Of course, there are ballots, including those from members of the military serving overseas, that can be lawfully counted after Election Day.)
But I’ve been focused on Fitton’s role in advising Trump in another capacity and one that relates to the other investigation under Smith’s purview: How Trump should handle records from his presidency. Throughout litigation that followed the FBI’s search of Mar-a-Lago last August, Trump argued that search was ill-conceived (and potentially unlawful) because, among other reasons, all of the documents seized actually were his personal property. (Unsurprisingly, the Justice Department took issue with that position.)
Trump’s argument rested on a misleading comparison of his conduct to that of another former president; here, Bill Clinton was his foil.
And when Trump’s team briefed his case to the U.S. Court of Appeals for the 11th Circuit, they argued under the Presidential Records Act that the president alone “determines whether a document constitutes a Presidential record or a personal record.” They also asserted that he was still president “when the documents at issue were…
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