Protestors stand in front of the Wilkie D. Ferguson, Jr. federal courthouse ahead of former President Donald Trump’s court appearance in Miami, Fla., on June 13, 2023. (Madalina Vasiliu/The Epoch Times)
Posted on 06/14/2023 10:12:59 PM PDT by SeekAndFind
The indictment of former President Donald Trump for holding military documents and obstructing the government from taking them is built on a novel legal theory that has multiple weaknesses, according to several lawyers and other experts.
The case has been portrayed in the media as being about Trump’s retaining classified documents from his presidency. However, the charges sidestep that issue and instead use a clause in the Espionage Act that criminalizes a failure to hand over national defense information. The indictment further alleges that Trump and staffer Waltine Nauta hid some documents when the government demanded them through a subpoena.
The alleged Espionage Act violations impose a high burden of proof and raise the question of whether the statute should have been applied to begin with and, if not, whether the underlying investigation should serve as a basis for obstruction charges, some lawyers told The Epoch Times.
“The key legal issue here is the interplay between the Presidential Records Act and the Espionage Act,” said Will Scharf, a former federal prosecutor.
The Presidential Records Act of 1978 stipulates that after a president leaves office, the National Archive and Records Administration (NARA) takes custody of all his official records.
The law allows former presidents to keep personal documents such as “diaries, journals, or other personal notes” not used for government business.
Protestors stand in front of the Wilkie D. Ferguson, Jr. federal courthouse ahead of former President Donald Trump’s court appearance in Miami, Fla., on June 13, 2023. (Madalina Vasiliu/The Epoch Times)
“If a former President or Vice President finds Presidential records among personal materials, he or she is expected to contact NARA in a timely manner to secure the transfer of those Presidential records to NARA,” NARA’s website states.
However, the Presidential Records Act isn’t a criminal statute. If a former president refuses to turn over some documents or claims obviously official documents as personal, the worst he could face is a civil lawsuit.
There’s little case law on such matters. In 2012, Judicial Watch tried to force former President Bill Clinton to turn over dozens of interview tapes he kept from his presidency. Clinton claimed the tapes were personal and the court sided with him. Judge Amy Berman Jackson, an appointee of President Barack Obama, went so far as to argue that the court had no way to second-guess a president’s assertion of what is and isn’t personal.
“Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office, it would be difficult for this Court to conclude that Congress intended that he would have less authority to do what he pleases with what he considers to be his personal records,” Jackson wrote.
However, the Department of Justice (DOJ) is now arguing that former presidents can be charged under the Espionage Act of 1917 for possession of documents that they kept from their presidencies.
“That’s a totally novel legal issue,” Scharf said. “It’s never been tested before. The Espionage Act has never been used to prosecute in this sort of a setting.”
The U.S. Department of Justice building in Washington on March 28, 2023.(Madalina Vasiliu/The Epoch Times)
Some lawyers believe the Espionage Act can’t be used this way because it wasn’t meant to be used in such a fashion. Before 1978, former presidents owned all documents from their presidencies, including any national defense information. There’s never been any suggestion that their holding on to such documents violated the Espionage Act.
“Congress has been very, very clear … that the act that applies to presidents and former presidents is the Presidential Records Act. The act that applies to everyone else is the Espionage Act, which has different requirements,” said Jesse Binnall, a lawyer that represented Trump in another matter.
Mike Davis of the conservative Article III Project voiced a similar opinion.
“Even if President declassifies his presidential records and takes them when he leaves office, he can still get charged under Espionage Act. … Promise that theory won’t fly with Supreme Court,” he said in a tweet.
Much of the indictment rests on the allegation that Trump kept national defense documents “willfully”—with criminal intent.
Yet the document falls short in providing evidence for such intent.
On May 11, 2022, the DOJ obtained a subpoena compelling Trump to turn over all documents with classification markings, including electronic ones.
One of the key claims is that Trump instructed Nauta to move boxes of documents around before his lawyer came to search the boxes for documents in response to the subpoena.
Nauta allegedly moved 64 boxes out of a storage room where Trump kept items and documents from his presidency and moved them to Trump’s residence at the resort. Nauta then moved back 30 boxes shortly before Trump’s then-lawyer, Evan Corcoran, searched the storage room for the subpoenaed documents, according to the indictment, which refers to security camera footage obtained from Trump’s Mar-a-Lago resort via a subpoena.
Read more here...
An untested, novel legal theory that could be applied to no previous president?
Or afterwards.
And there are also the historically untested Stasi survivability factors.
For what purpose would a president keep classified documents? He would be awfully stupid to not make use of them while under the auspices of being president as opposed to being in the unprotected status of being a former president.
Yes, in other words it’s made up crap.
Banana republic stuff is not an exaggeration.
An accurate and I hope legible enough description of some key issues.
My opinions….
I do think the espionage act charges are the easiest for Trump to dispute. The obstruction and false statement charges are the more serious threat, as he could be convicted on those even if the 31 other charges are thrown out.
The legal theory of laws mean what prosecutors want them to mean until the Supreme Court says no theory.
First, this is the best legal analysis that I have read so far. Maybe it is the only legal analysis so far that I have seen that seems to have a chance of being accurate.
There seems to be a lot resting on whether “defense” records are covered by the 1917 Espionage Act or the 1978 Presidential Records Act. The 2012 Clinton “Socks” DC case resolved this in Clinton’s favor— for DC jurisdiction only. Apparently the DOJ went jurisdiction shopping to get an indictment from DC and then prosecute in Southern District of Florida. It has been alleged that this is unusual and even legally questionable.
Even if the trial were to find against Trump, then it still would certainly go to appeals up to the USSC level. The USSC would presumably need to choose between the DC interpretation of the law and the Southern District of Florida’s interpretation. Common sense would seem to favor the former.
Some of the legal loose ends of this case might make more sense if this prosecution is not regarded as the final prosecution but only an interim prosecution designed to chip away at trump’s goodwill with voters and reputation among detractors in the court of public opinion. It’s really a shameful banana republic move and I hope political karma will be swift and certain.
102 docs marked classified out of 10’s of thousands. These boxes of docs were boxed up by the National Archives and shipped to him.
None of those that did the boxing are charged.
The guy below shows a box as an example filled with 500 sheets in a package of paper and 102 sheets of paper and he shows the many photos of boxes that he says is suppose to put thoughts in the heads of jurors and viewers that Trump has many thousands of classified docs.
BTW Trump can declassify as president any doc whereas Biden could not as senator and VP. He had boxes stores in his home garage and the Penn Biden center which was paid by the communist chinese plus at least a third location. You know they had access. There is also 17 recordings of Hunter Biden and Joe Biden talking with Ukraine officials about. See Dan Bongino link below.
Newsmax’s Greg Kelly Reveals How Anyone Can Tell the Trump Indictment Is a ‘Scam’
https://rumble.com/v2u9u2m-newsmaxs-greg-kelly-reveals-how-anyone-can-tell-the-trump-indictment-is-a-s.html
Watch a funny Trump dance first 2 mins
https://rumble.com/v2u5kqq-wait-there-are-more-tapes-ep.-2031-06142023.html?mref=22lbp&mc=56yab
Dan talks about the recordings and that there are more like Joe Biden talking about a $10 million dollar bribe!
Dan plays the recording approx 10:45
Main page: https://bonginoreport.com
The apex of show me the man and I’ll invent the crime.
The new obamanite standard. Fartsical but true.
Welcome to Obama’s fundamental bulletless coup.
Yep its a brave new world.
Fubo
Im waiting to see that in Trump’s defense.
In that ruling, she also included wording from the act that presidential determinations needed to be documented, something that seems to be missing.
The Department of Justice and Jack Smith know that the legal theory they have concocted is implausible and highly unlikely to prevail in the long run. The entire point of the prosecution is not to get a valid and sustainable conviction but to burden and smear President Trump so as to impair his election chances. This is a bad faith prosecution, similar to the Duke University rape prosecution.
The images of boxes of documents in various locations at Mar-a-lago indicate to me there was a sorting process going on as document were viewed for their importance. Those boxes needing to be inspected were in one location and those determined essential to keep were in another. Those not important were stacked in another area. I imagine the Top Secret files were kept in a room under lock. Trump said that he didn’t have time to complete his inspection of the files.
“Top secret” documents? Why would you even believe that? “Marked classified” is very specific wording. Docs are marked classified, but when unclassified, you can’t exactly take the ink out. There are tens of thousands of documents with “classified markings” floating around out there. I’ve seen hundreds of them myself brought back by WWII soldiers.
I remember, that when they executed the search warrant, the Feds made them turn OFF the surveillance cameras. That is ALL that you ever needed to know about this entire situation.
Eventually, someone will ask if 50-percent of all documents are over-classified, and the public will start laughing. Every time some CIA PhD guy wrote a speculation report....it ought to be set to confidential and declassified after five years (automatically).
To the current government, "national defense documents" means documents dangerous to Democrat rule.
I'm willing to bet that many of the documents that President Trump kept are evidential of Democrat corruption, collusion, or abuse of power related to the Russia campaign dirty trick. I wouldn't be surprised if Adam Schiff's name appears in some of them (or Hillary Clinton's or Barack Obama's or James Comey's).
-PJ
That’s a very astute statement. And it goes to intent.
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