Posted on 06/16/2023 8:50:10 AM PDT by CFW
(This is a guest post from our friend Shipwreckedcrew, a former federal prosecutor who currently represents 13 January 6 defendants facing trial. (He also represents three January 6 defendants whose cases are on appeal.) All revenue from his paid subscriptions is used to cover expenses incurred in representing clients charged with crimes related to January 6. You can contribute directly to that cause at the January 6 Legal Defense Fund page on GiveSendGo.)
The Presidential Records Act is not a clear path to exoneration for former President Trump.
But the Espionage Act is not “cut and dried” in its prohibitions when applied to a former POTUS who on his last day in office had absolute — ABSOLUTE — authority to see and possess every document and piece of information held by the Executive Branch.
Trump has been charged by the Smith SCO with 31 counts of violating the “Espionage Act” — Title 18 United States Code Section 793.
Section 793(e) reads as follows:
(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United entitled to receive it
(Excerpt) Read more at technofog.substack.com ...
Re-posting because it is important...
Indictments (“accusations”/”charges”) are a threshold issue before the merits of a case are even considered. Legitimacy of indictments including those against Trump fully depends on reasonable evidence of PROBABLE CAUSE that Trump committed a crime for which he is accused (”indicted”). The U.S. Constitution, Amendment IV.
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.
The more specific law takes precedence over more general law. That means the PRA takes precedence. Work from there.
RS?
What is disturbing is Demx know this
And still are confidence to pursue it.
“What is disturbing is Demx know this
And still are confidence to pursue it.”
Anything to get the outsider President Trump from ever being President again. Unfortunately, there are a number of so- called Republicans that supporting all of this.
And the jury can acquit simply because they or one of them believes the law is being misapplied or abused no matter what judge/lawyers say.
Very insightful opining from you. I agree.
Thank you for the kind remarks.
Hope/wish Trump’s lawyers pounded on this before the case even got started...
I have one criticism of their review of the statute. And that is they neglected to include the Espionage Act is not concerning just any defense information but information that a “person has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.” That part is the crux of the matter.
A member of the jury can fail to convict because its a Tuesday. They don’t need to give a reason.
“I do not know the facts or the specific federal law well enough to judge in this case.”
This is the operative phrase of the entire post.
I don’t know if Trump was guilty or not on the documents. But i will say this, if i were him and had the documents, I would have placed a secure room, with cypher locks with cameras inside and out, and has a sign in log with codes for each person to enter and leave by. Or, I would not have taken them in the first place. JMHO
Understand that the point of the entire post is the nexus of law and facts constitutionally requiring reasonable suspicion (RS) and probable cause (RS) BEFORE the merits of the case are even considered.
My point is that people who haven’t seen a single bit of evidence or testimony are passing judgement on this case.
People shouldn’t do that. It’s all just red meat with no nutrition.
Prior to the Presidential Records Act (1978), ex President’s routinely took possession of their documents and records. After the passage of the Espionage Act in 1917 it is likely that at least some (if not most) took National Defense Information with them but yet not one of the twelve President’s from 1917 to 1978 was ever charged under the Espionage Act. I infer that mean that it really did not apply to ex Presidents.
Right but people need to understand that the illegality here is initially in the threshold issues, not necessarily in the merits of the case itself (which is probably also a piece of crap).
The National Archives denied the Trump administration help with sorting out the documents. Reagan, Bush1, Clinton, Bush2, and 0bama were all given help sorting things out, and the National Archives shipped presidential papers to facilities they rented and controlled. They didn’t do that for Trump. I suspect they were setting him up for the “documents hoax”.
Just think about it for a few minutes, first, there was the Russian Collusion hoax, the Ukraine phone call hoax, the Russian Bounty hoax, and the WW1 soldiers “suckers” hoax, and January 6th, does anyone for a minute think that the leftist-controlled National Archives would be above getting involved in an operation designed to take down Trump? To say nothing of the Alvin Bragg, Latisha James, E Jean Carroll, and Fanny Willis in Georgia.
"National Defense Information" is code for "threatens Democrat party rule."
Democrats claim that the country is threatened whenever they lose an election. That's why I continue to believe that the documents President Trump kept were evidence that the Obama White House, the Clinton campaign, and the FBI all colluded to undermine his campaign and presidency.
Exposing it becomes a threat to Obama, Clinton, Comey and Wray, and Democrat party rule, and hence is an issue of "National Defense."
-PJ
Reasonable Suspicion.
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