Posted on 06/15/2023 10:57:30 AM PDT by Starman417
I am a former Assistant U.S. Attorney, worked on two Supreme Court confirmations, and clerked for two federal appellate judges.
The indictment and case against President Trump is outrageous and shocking.
But let’s get into the details.
Here are my 6 key points on the case:
(1) Interplay between the Espionage Act and the Presidential Records Act
A lot of my friends have spoken insightfully about the scope of the Presidential Records Act. I’d direct you to Mike Davis’s (@mrddmia) commentary on the subject, and also Michael Bekesha of @JudicialWatch’s piece yesterday in the @WSJ about 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 elements in § 793(e) 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, and also that the Defendant KNEW that there was a government official entitled to receive the Information, and also that the Defendant 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.
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 NARA, and he has the right to keep his Personal Records.
Based on the documents I’ve read and his actions that I’ve read about, I believe that 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 that NARA simply had no right to receive them at all. Meaning that 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.
This is not a matter of [Classified Documents]+[Mar a Lago bathroom]=Conviction.
That’s what they want you to think, and that’s the media’s inch deep view, typically, 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.
(2) Classification and National Defense Information
I want to reiterate this point because it’s really important:
Just because something is classified—even Top Secret, SCI, NOFORN, FISA, pick your alphabet soup—does not mean that it is National Defense Information (NDI) within the meaning of the Espionage Act.
NDI, for the purposes of an Espionage Act § 793(e) prosecution, is defined as one of a long list of items “relating to the national defense which information the possessor had reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.”
A lot of the documents listed in the indictment are older, or seemingly random. Would Trump in 2022 have had reason to know that a 2019 briefing document “related to various foreign countries, with handwritten annotation in black marker” could harm the US or help foreign countries?
Tough to say, because we can’t see the documents, but that’s a question the jury is going to have to decide in the end, and Trump’s legal team needs to drive home this point over and over again:
Classification is not dispositive in this case.
Harm to America or benefit to foreign countries is the standard.
Anyone who has worked around government knows that overclassification is a huge problem. A ton of documents end up being classified because of arcane technical rules that may not reflect the real world.
If the president were to ask the Navy what’s for lunch for the next week at Coronado, for example, I’ll bet you the answer comes back with a classification marker on it.
Not everything classified constitutes NDI. Focus on the actual legal standards and statutory language, not a bunch of scary looking all caps acronyms.
(3) Walt Nauta and DOJ Misconduct
Far and away the most troubling side story to emerge from this saga so far are the allegations made by Trump aide and co-defendant Walt Nauta’s lawyer last week.
You may have missed it if you blinked. Not surprisingly, the mainstream media has mostly buried this one.
Nauta’s lawyer, Stanley Woodward alleged in a court filing that during a meeting with prosecutors about his client’s case, the head of the Counterintelligence Section of DOJ’s National Security Division Jay Bratt “suggested Woodward’s judicial application [for a DC Superior Court judgeship] might be considered more favorably if he and his client cooperated against Trump.”
If true, and I find it hard to believe that Woodward just made the whole thing up, this is wild misconduct. Truly wild. It could undermine the entire case against both Trump and Nauta. It could end careers at DOJ if fairly investigated.
And a word on Stanley Woodward: I don’t know him, but I know of him. He is a highly accomplished lawyer. Spent a decade at Akin Gump, a top law firm, clerked on the DC Circuit, and has very substantial experience in government investigations. This is not some fly by night TV lawyer. He’s a real deal legal heavyweight, and he’s leveling an extremely serious allegation of misconduct against a senior official at DOJ.
Watch this issue as the case against Trump and Nauta begins to move. You’ll hear more about it, I’m sure.
(4) Attorney Client Privilege
(Excerpt) Read more at floppingaces.net...
It’s not weak.. it’s ABSURD.
Even weaklings Birr Barr & Andrew McCarthy are singing the tune of the Uniparty communists. Both have offered their two cents, that isn't worth a plug nickel, about this case, & it differs from your take. While I agree with your take, election theft has consequences, and the consequences are upon us, not the thieves.
Are you just not paying attention?
It’s not weak.. it’s ABSURD.
but they talk big ,LOL
There is probably a very high standard for the definition of “espionage” as a crime to be met. Not only intent, by arranging for the collection of data to be transmitted, and making some kind of contact with the entity involved to transmit the data, there has to be some sense of the degree of how sensitive the information is, and whether is is valid or not.
Things that are either common knowledge or patently untrue do not constitute data suitable as a target for espionage.
The most important point is that Trump did not lack “authorization” to take or possess the documents to his office/residence in Florida. They were taken there on 1/18/21, while he was still POTUS. The “Clinton sock drawer” case, which followed binding DC Circuit precedent, stands for the proposition that the National Archives has no authority to order a former POTUS to return items to the government. Moreover, Trump possessed COPIES of documents, not the originals, so the government still has the originals. These are not government documents because Trump packed them up and, with AUTHORITY, i.e., his authority, he removed them from the White House.
Good info thanks for posting.
That is the best presentation I’ve seen so far.
I always fund AUSA’s in this district to be cowardly when it came to accepting cases that weren’t exclusively FBI-originated, and overly protective of their carefully preserved 98.3 % conviction rate, though when asked if they calculated such a score, would usually claim it didn’t happen.
It’s what you’d expect when the USA of the district is a pol.
Think Robert Hansen, Rick Ames, John Walker,...Joe Biden.
Hillary Clinton
I am also a lawyer. This guy makes very good points. The last one is not really a defense though. It’s just the sad truth.
He touches on it. Briefly. In passing. But none of these "experts" seem to focus on the CRITICAL threshold issue of an articulable REASONABLE SUSPICION (RS) of a crime to even start an investigation and PROBABLE CAUSE (PC) to charge ("indict").
So far I see no nexus between 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 PROBABLE CAUSE 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.
Yes. Smoke the ☭Dem B_tards.
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