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...
When you take a step back from this and look at what they’re doing...it’s insanity. They’ve become so used to the “get Trump” mentality, with endless absurd assertions of conspiracy, we’re at a point where they’re willing to do literally anything and attempt to wrap it in rationality.
There’s nothing rational in this. The fact is, we have special rights for a POTUS respective to documents, it’s what the P.R.A. is all about. If it is worth anything, you can’t go from ‘legal standing’ to ‘guilty of *ESPIONAGE*’ over some documents that a former POTUS should or should not have, especially considering there’s probably room for interpretation or opinion.
This is all magnified by the fact that it, apparently, is only applied to PDJT. The arrogance to simultaneously ignore Biden, Clinton, Pence, Obama, etc.. is astonishing, with all the contorting of facts to attempt to rationalize one but not the other.
If they’re successful in finding PDJT guilty then we are, by definition, broken. The POTUS and weaponized agencies are clearly using their power to persecute and imprison their political opponents. All with media cover.
We all need to be careful with our words here. I think it’d be obvious though what would be necessary in response. This would be an impossible outcome moving forward. It’s a precedent suggesting that a former POTUS is a hair away from prison until death.
Thank you for seeking and finding this one!
If Trump is convicted on any of these counts/charges...does this keep him legally from running...or being elected...president?
Wasn’t there a photo here on FR a few days ago showing boxes of records Trump had sent to NARA when he was moving out & NARA sent those boxes back & left them at the White House???
Seems NARA triggered this whole mess when THEY REFUSED TO DO THEIR JOB, and accept the records & to store them properly.
Leave it up to bitter Garland to be the first.
No, not ridiculous, but crafty. This action is about election interference, not national security. They’re just trying to knock President Trump out of the running using old fashioned political dirty tricks (as Nixon used to say) with a planned and coordinated scandal.
“No, not ridiculous, but crafty.”
Yes, you’re correct. They’re following Obama’s advice to “get creative.”
They like to use laws outside of their intended purposes as cudgels against their enemies.
Yep. Used to be they could always count on a juicy scandal to derail a political enemy. But, here with Trump, it will be difficult for them to succeed. Trump is an open book. We’ve seen his works in his first term: America prospered, and we want more of it.
Really?
The Presidential Records Act is quite clear that its processes are CIVIL not criminal in nature and was adjudicated in a real case involving Bill Clinton.
That this is criminal in its nature has been made up out of whole cloth by the evil people in charge at ‘Justice” because this is Donald Trump whom they hate and whom they fear.
No and No.
Thx.
Wouldn't somebody actually trying to find and hide the classified documents want the classified documents, or even the boxes with the classified documents in them? Instead it looks like Trump just said in effect "get me ten or so boxes so I can look at them" without specifying which boxes.
That seems to me to be evidence suggesting the opposite of what the DOJ is claiming happened.
Obstructing the government from taking
Were in the same deal brother hang in there and kick ass.
The Biden DOJ doesn't want to admit it but traditionally ex-presidents retain their security clearance and their home offices are set up so that they can have and view classified materials and they often have communications systems suitable for classified conversations with the new President. That is one thing the Secret Service is doing as they provide security at a former president's home. The reason for this system is to allow a current president to confer with former presidents if necessary.
The claims that Trumps home or offices were not secure is ridiculous. Does anybody think that the Secret Service just lets any random person wander around in Trump's home?
My observations were brief and you were more generous with yours. Thanks.
I remember reading “Confidential” documents in the U.S. Navy. They were about normal activities that you would never thought had any classification. With my Top Secret rating, I wondered when I would get my first Top Secret document. I guess what was Top Secret were the films I created that were sent over to the U.S.S. America and the talk I had with the very pleased C.N.O.
In the matter of President Trump as “Commander in Chief” and the “Executive” in charge of all three branches of government, it didn’t matter what classification of documents he had in his possession. Such documents were his possession to do what he chose fit. Some say Article 2 of the U.S. Constitution gives him that right. In accord with the President Trump’s right to all the presidential records is the Presidential Records Act (PRA) of 1978. This is what is said:
Establishes public ownership of all Presidential records and defines the term Presidential records.
Places the responsibility for the custody and management of incumbent Presidential records with the President.
Requires that the President and his staff take all practical steps to file personal records separately from Presidential records.
Allows the incumbent President to dispose of records that no longer have administrative, historical, informational, or evidentiary value, once the views of the Archivist of the United States on the proposed disposal have been obtained in writing.
This sorting process was what President Trump was in the process of doing. He admitted he had much more to do and was not done before the F.B.I. raided Mar-A-Lago. Is it now a federal crime to be behind in the job? It tells me those running the show for Biden would have no idea how to change a light bulb!
Why are they sticking to the Espionage Act? Should throw in some Alien & Sedition, Habeus Corpus Suspension, McCarron, and, just for the fun of it, a little Patriot Act.
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