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...
In one sentence the jig is up.
Documents with classification markings may not be classified documents.
https://vault.fbi.gov/fbi-technical-surveillance-countermeasures-classification-guide/FBI%20Technical%20Surveillance%20Countermeasures%20Classification%20Guide
Look for the X' and what is hiding underneath.
You've just viewed A DOCUMENT with classification markings on it.
(U)Authorized Classification and Control Markings Register
ANOTHER document with MULTIPLE classification markings. (U)
I read the Espionage Act yesterday. Very short law like they used to write them. Barely a page and a half.
Ridiculous that they’re using this law.
Doesn’t matter. Trump will be found guilty OR smeared so badly that he is politically wounded.
On Page 11 you get to see the infamous (b)(2) in action with redaction.
Oh, the irony in that particular link.
BWAHAHAHAHAHAHAHA
In order for a smear to be effective the premise of the smear has to first be accepted.
People aren't buying it. It just slides off.
"WOLF!", the boy cried.
Yesterday, I heard that the Feds are thinking about moving this case to NJ because a FL jury would be too fair towards Trump.
If I heard correctly, they’d manufacture a similar crime in NJ (where he lives in summer), combine the two, and try it up there.
Pure evil.
“For what purpose would a president keep classified documents?”
He doesn’t need a reason, but maybe memorabilia, or research material if writing a book? But it doesn’t matter; he doesn’t need a reason.
Also, by his act of taking them he automatically unclassifies them. As long as he took them before 11:30 am on January 20, 2021, we don’t need to worry our little heads about it, as PDJT was POTUS then.
“Trump will be found guilty OR smeared so badly that he is politically wounded.”
OR worse. I saw a clip of Dan Bongino telling why he’s seriously fearful of a Trump assassination. He’s former Secret Service, has guarded Presidents, and knows the protocols for number of agents, how they’re scheduled, etc.
He sees a potential disaster when it comes to Trump.
Wouldn't you?
If I recall correctly the Manhattan D.A. is also using a ‘novel legal theory’ to wage political lawfare.
“These boxes of docs were boxed up by the National Archives and shipped to him.”
According to a letter sent by Trump’s lawyers, the National Archives did not pack the boxes like they have done for previous presidents. Apparently the archives did not have time to plan for this work and detail personnel. Instead it seems that White House staff just packed boxes with materials as they found them, did not catalogue them or segregate them into personal versus government materials and that is why everything is mixed up in those boxes. We have not heard the National Archives side of the story yet of why they refused to assist with the transfer of material from the White House to Florida.
“ARTICLE I SECTION 2....The President...may require the opinion, in writing,of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices”
Why might that have been put into the Constitution?
Would it not follow that a President might need and wish to retain at least some of those writings after leaving office?
“After Johnson’s death, Rostow put his documents in a sealed envelope and gave them to the Lyndon B. Johnson Presidential Library....the library opened the envelope in the 1990s, although some of the material has yet to be declassified.”
https://theintercept.com/2022/08/11/trump-fbi-mar-a-lago-classified-documents-lbj/
9-90.010 - National Security
....
The enforcement of all criminal laws affecting, involving or relating to the national security, and the responsibility for prosecuting criminal offenses, such as conspiracy, perjury and false statements, arising out of offenses related to national security, is assigned to the Assistant Attorney General (AAG) of the National Security Division. Where a matter affects the national security, regardless of the specific statute(s) implicated, prosecutions shall be instituted and conducted under the supervision of the Assistant Attorney General, National Security Division, or higher authority. 28 C.F.R. § 0.72.
https://www.justice.gov/jm/jm-9-90000-national-security
“Ultimately, plaintiff conceded that even an order deeming the materials to be Presidential records and directing the defendant to make an effort to retrieve them would not bind the former President to produce them, Tr. at 60:14–20, and it would not make them magically available under FOIA”
RE: Trump said that he didn’t have time to complete his inspection of the files
Therefore, what follows? He deserves to be in jail for that?
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