Thoughts On The Federal Trump Indictment: It's Shockingly Weak

Manhattan Contrarian ^ | June 10, 2023 | Francis Menton

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you might be surprised that when you get to the actual crime charged, it arises under a statute that does not relate to “classified” documents per se, and is independent and separate from the whole system of classified documents. The statute in question is 18 U.S.C. Section 793(e). Here is the text of it:...

Nothing in there mentions classified information, or turns on whether the information in question is “classified” or not. The relevant issues are, instead, whether the person has “unauthorized possession or, or access to” information “relating to the national defense” and “causes it to be communicated to” someone “not entitled to receive it.”...

in evaluating whether a case against Trump might have those elements, it would be rather critical to consider the importance of the Presidential Records Act of 1978... in making presidential records the property of the government, the act contained this rather important carve-out (22 U.S.C. Section 2205(3)):

Notwithstanding any restrictions on access imposed pursuant to sections 2204 and 2208 of this title . . . (3) the Presidential records of a former President shall be available to such former President or the former President's designated representative...

the indictment that has been issued does not anywhere mention this.

So by the clear words of this statute the ex-President is absolutely entitled to have “access” to the “Presidential records” generated during his own term, and also he can further legally provide access to whoever he designates as his “designated representative.” So how could Trump fit the element of Section 793(e) that he had “unauthorized possession of, or access to” the documents in question, whether classified or not? And, since he has the complete ability to make people his “designated representative,” how can he have given access to the documents to people not “entitled” to receive them?...

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The very capable conservative lawyer Francis Menton eviscerates the latest legal case against Trump. Too bad Trump didn't name him Attorney General instead of Bill Barr.