Not what National Review believed.
Not what Bill Barr Believed.
- Mark Levin
Got that Bill? Got that National Review?
Posted on 06/16/2023 6:44:28 AM PDT by CFW
I am a former assistant U.S. attorney, worked on two Supreme Court confirmations, and clerked for two federal appellate judges. I have reviewed the indictment brought by Special Counsel Jack Smith in the documents case against former President Donald Trump, and have serious concerns with the way this case is being framed in the public and with some aspects of the way the prosecution itself is being conducted.
Here are six major issues I see that need to be addressed by the special counsel’s team.
1. Interplay Between the Espionage Act and the Presidential Records Act
Others have already spoken insightfully about the scope of the Presidential Records Act (PRA). Mike Davis of the Article III Project has published and spoken on the subject, and Michael Bekesha of Judicial Watch had a fascinating article in The Wall Street Journal detailing his experience litigating the Clinton Sock Drawer Case.
Basically, their argument distills down to the idea that the president’s authority to retain personal records, as well as his rights to access his presidential records, make it impossible to prosecute him under the Espionage Act section at issue here, § 793(e), because the government cannot prove “unauthorized possession,” as required under the statute.
(Excerpt) Read more at thefederalist.com ...
The rule of law no longer matters. If you can get a jury of Democrats you can convict
“I am a former assistant U.S. attorney, worked on two Supreme Court confirmations, and clerked for two federal appellate judges.”
Well, he doesn’t know it, but he desperately needs to come under the tutelage of a few posters here to set his mind straight.
Not to mention Ann Coulter, if anyone can approach her through the venomous mist that surrounds her.
The U.S. Constitution. Remember that?
Without PROBABLE CAUSE, the indictments must be thrown out and very possibly prosecutorial misconduct considered. First, the Supreme Law of the Land, the U.S. Constitution:
The 4th Amendment begins with confirming that one has the right to be secure in his person and his belongings from government interference (unless there is probable cause (PC) of committing a crime). (The 4A doesn’t grant the right, it simply confirms the right with which the Declaration of Independence (DOI) has declared we are endowed by God upon birth.
The body of the Constitution, in which the states ratified the transfer of certain limited and enumerated powers from the States and the people to the central government, does not transfer that power from individuals to the federal government so the 4A simply confirms that this right of security from the government belongs to the individual - true with all first eight amendments which are wrongly called a “bill of rights”).
So, based on our basic God-given right to security from the government, in order to even start an investigation, the government must have legitimate reasonable suspicion (RS) that a crime was committed. Reasonable suspicion requires articulated and specific reasons why the prosecution believes the defendant committed a crime. “Hunch” or something other than facts that can be articulated are not good enough to detain or investigate.
Probable cause (PC) goes a step further. PC goes from “possible” (RS) to “probable” (PC), again requiring articulation of facts that a crime was PROBABLY committed, enough that prosecution could reasonably believe a judge would issue a warrant.
Next, the facts of the case:
I do not know the facts or the specific federal law well enough to judge in this case.
However I will say that the Leftist Congress and Biden and his administration including the DOJ & FBI, have broken the law many times in having NO articulated reasonable suspicion BEFORE they begin their investigation, much less PC to formally accuse (”indict” or “impeach”). I think it is safe to presume that these actions of this rogue and corrupt government are also absent RS or PC.
Meanwhile, none of the "experts" seem to focus on the CRITICAL threshold issue of an articulable RS of a crime to even start an investigation and PC to charge ("indict").
So far, I have seen no nexus between the law and the facts here - the statutes being used, and facts about why and who reasonably believed Trump committed a crime against those statutes. Instead, from all appearances, they are illegally using Court proceedings to see if they can ferret out RS and PC, just like they have done with their frivolously and illegal accusations and charges from day one of Trump's initial presidential announcement.
WHY DOES NO ONE CALL OUT THE ABSENCE OF RS AND/OR PC without which further Court proceedings are simply unconstitutional and, thus, illegal????.
Again, this is the "Grand Inquisitor" stuff of totalitarian regimes that need no legal justification for their actions.
Great analysis, if we actually lived under the Constitution and rule of law. That stuff doesn’t matter anymore. The Constitution and the Republic are dead.
“The Constitution and the Republic are dead.”
The Left would like to think so.
But, no, America, the Constitution, our Free Constitutional Republics which all adds up to FREEDOM, are alive and well in the hearts of ten of thousands of Americans, me included.
“It Turns Out That America Is Much Harder To Destroy Than Our Enemies, Foreign and Domestic, Thought”
You're right. It remains alive, in our own little fantasy land. But being alive in our head is much different than it working for us in reality. Oath to the Constitution? Dead, or at the very least, completely meaningless. Otherwise, this garbage wouldn't be happening. See tagline.
The Left has managed to slowly and stealthy erode our Free Constitutional Republic like a disease that is not felt, like cancer, maybe for a long time.
But unlike you, I think with the help of Divine Providence we’ll see our way out of this.
BTW, the God-given desire and longing for freedom from government coercion is not a “fantasy”. America’s history especially in the 1800’s is not a “fantasy”. It is a fact. 1800’s America was one of the freest periods of a society in history.
We, like the colonists of 1776, again are challenged to fight for our God-given right to freedom. Many have and will die to be free of man’s oppression through dictatorial and totalitarian government. It’s definitely not over as the Lying Left would have you believe.
Being read right now by Mark Levin.
1. Interplay Between the Espionage Act and the Presidential Records Act
Others have already spoken insightfully about the scope of the Presidential Records Act (PRA). Mike Davis of the Article III Project has published and spoken on the subject, and Michael Bekesha of Judicial Watch had a fascinating article in The Wall Street Journal detailing his experience litigating the Clinton Sock Drawer Case.
Basically, their argument distills down to the idea that the president’s authority to retain personal records, as well as his rights to access his presidential records, make it impossible to prosecute him under the Espionage Act section at issue here, § 793(e), because the government cannot prove “unauthorized possession,” as required under the statute.
I want to make a different point relating to the intent element of the Espionage Act, the statute Trump is being charged under.
Section 793(e) requires the government to prove that the defendant knew he had National Defense Information (NDI) in his possession, knew there was a government official entitled to receive the information, and then willfully failed to deliver it to that official.
This is a very high set of mens rea bars to jump in any circumstance. Proving a defendant’s intent and knowledge can often be tough. But it’s even tougher here because of the Presidential Records Act.
The Presidential Records Act sets up a system where the president designates all records that he creates either as presidential or personal records (44 U.S.C. § 2203(b)). A former president is supposed to turn over his presidential records to the National Archives and Records Administration (NARA), and he has the right to keep his personal records.
Based on the documents I’ve read and his actions I’ve read about, I believe Trump viewed his “boxes” as his personal records under the PRA. There are statements he made, quoted in the indictment, that support that view. If Trump considered the contents of these boxes to be of purely personal interest, hence his designation of them as personal records, did he knowingly retain NDI?
Did he really think these documents, like years-old briefing notes and random maps, jumbled together with his letters, news clippings, scribbled notes, and random miscellaneous items, “could be used to the injury of the United States”? Or did he just think of them as mementos of his time in office, his personal records of the four years, akin to a journal or diary?
If he thought these boxes were his personal records, he may have believed NARA simply had no right to receive them at all — meaning he did not willfully withhold anything from an official he knew had the right to receive them because he didn’t believe that anyone had the right to receive them.
By breathlessly bandying around classification levels and markings, the special counsel is trying to make this case seem much, much simpler than it is. Classification levels do not automatically make something NDI, and having classified documents in your possession is not enough to convict here. It is simply not the case that the fact that previously classified documents were found in boxes in a Mar-a-Lago bathroom means Trump is guilty.
That’s what they want you to think, and that has the media’s inch-deep view for the most part, but it’s dead wrong.
More than anything, this case hinges on the ability of the special counsel to prove “beyond a reasonable doubt” aspects of Trump’s state of mind that will be extremely difficult to prove in this case because of his obligations and rights under the Presidential Records Act — in addition to all of the usual issues.
Not what National Review believed.
Not what Bill Barr Believed.
- Mark Levin
Got that Bill? Got that National Review?
“Being read right now by Mark Levin.”
I’m glad Levin is drawing attention to the defects and the flaws in the indictment.
The woman has lost her freaking mind.
I am not going to take Garland's word about Trump or anything else.
I am getting a serious vibe that assistant Walt Nauta is going to flip on the FPOTUS. DOJ has a vice-grip on his nuts right now, as he could face a long prison term if convicted.
On the other hand, I think it is given that Mark Meadows has now flipped and turned on Trump in the latest DC Grand Jury appearance. Also, it is instructive that Ivanka and Jared are NOWHERE to be seen throughout all this, the Melania was another no-show again for the latest indictment. It seems to be imploding somewhat. Trump dropping lawyers right and left again, too. He’s putting a brave face on it, though, and raising money. Yikes. What a mess
I wouldn’t take that bitter punk’s word if he told me that the sun rises in the east.
p
Garland is more dangerous than an ordinary political crook. He is not looking for immediate riches. He seeks power for himself and to take away our rights, but he is playing the long game.
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