Posted on 06/15/2023 8:54:28 PM PDT by SeekAndFind
We’ve covered some of the legal opinions on the Trump indictment, and there are some varied views. We’ve reported some of them, including those from Jonathan Turley, Andrew McCarthy, and Alan Dershowitz, among others.
But there’s a Twitter thread from Will Scharf that makes some interesting points that are not being picked up by the media.
Scharf is a former Assistant U.S. Attorney who worked on two Supreme Court confirmations and clerked for two federal appellate judges. He’s also running for Missouri Attorney General. Like many, he thought the prosecution against the former president was “outrageous.”
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:
— Will Scharf (@willscharf) June 15, 2023
Click on the post to see the entire tweet.
(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…
— Will Scharf (@willscharf) June 15, 2023
Scharf notes how Article 3 Project’s Mike Davis and Judicial Watch’s Michael Bekesha’s 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.
If you accept that argument, then the first 31 counts based on “unauthorized possession” could fall.
But Scharf said it also might be hard to meet the provisions of the act as to intention.
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.
“Mens rea” refers to the intent or knowledge of wrongdoing. So Scharf makes the point that if Trump thought these were his personal records — mementos, clothes, etc., as he described in his Bedminster remarks — he may not have had the willful intention to unlawfully retain them.
Scharf also makes the point that just because it’s classified doesn’t necessarily make it national defense information under the Espionage Act.
(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…
— Will Scharf (@willscharf) June 15, 2023
Now some might point to the alleged call that is mentioned in the indictment where Trump allegedly displayed a document to someone else and claimed it was “secret.” That’s a problem, if true. You’d also have to show it met all those elements as Scharf noted, and that it “could be used to the injury of the United States or to the advantage of any foreign nation.” If it’s a briefing document from 2019, for example, would it even have any relevance now? As Scharf notes, we don’t know all the facts, but Trump’s legal team is going to have to make this point to the jury.
Scharf also spoke about “far and away the most troubling side story” that happened with co-defendant Walt Nauta’s lawyer, Stanley Woodward. We covered it, and we noted how the former acting Director of National Intelligence John Ratcliffe accused the Special Counsel’s team of acting improperly to get Trump. But most of the rest of the media seems to have skipped right over it.
(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…
— Will Scharf (@willscharf) June 15, 2023
The allegation is that when Chief of the Counterintelligence Section of the DOJ’s National Security Division Jay Bratt had a conversation with Woodward about Nauta’s case, he “suggested Woodward’s judicial application might be considered more favorably if he and his client cooperated against Trump.” Scharf notes that’s incredibly concerning since Woodward is making such a serious claim, and he’s no fly-by-night. Given what we’ve seen from the FBI/DOJ in the past few years, it’s not hard to believe this.
Then there are the questions about attorney-client privilege. Scharf notes there’s information in the indictment from one of Trump’s attorneys, Evan Cocoran. Now you’re not supposed to be able to get the communications between attorneys and their clients, but they reportedly forced Corcoran to testify using the “crime fraud” exception. That’s an exception that allows you to pierce the privilege if the client is involved in criminal conduct and trying to enlist the attorney’s assistance in the commission of a crime.
(4) Attorney Client Privilege
The indictment relies on a significant amount of information received, in one form or another, from one of Trump’s lawyers, Evan Corcoran, who was compelled to testify in front of the grand jury. According to news reports, the argument for breaching…
— Will Scharf (@willscharf) June 15, 2023
But if that’s the case, just reading this indictment, it feels like the obstruction charges may have been structured specifically in part just to get Corcoran’s testimony in, to help buttress what would otherwise be a much weaker case against Trump on the substantive charges.
In any case, the Special Counsel is going to have to show why the communications in question were a solicitation by Trump to Corcoran to join him in criminal acts, as opposed to Trump asking a lawyer he hired to advise him on his legal defense, to tell him what his options were, or to outline what defensive steps might be possible, and what was done by others in previous cases like Hillary’s emails.
Reading the conversations in the indictment, they sound a lot more like honest attorney-client communications than they do crime fraud to me, even with all ellipses and modifications.
I expect a motion by Trump’s legal team on this issue, and if they win that will cut the guts out of much of this case. Very tough to prove up intent and willfulness the way the government needs to without Corcoran, at least based on what we see in the indictment.
Scharf also makes a great point about the timing of this indictment. Now any lawyers who have been involved in criminal law or the government will tell you that the government virtually never does anything fast. Yet in this matter, you have a case brought very quickly, which is not the norm. He thinks it was political.
The fact that they didn’t is strong evidence to me that a big part of this is the burning desire among many on the left to “Get Trump.” They don’t care about the law, they don’t care about the facts, they don’t care about norms or propriety or anything else. They just want Trump in cuffs.
It’s not the way things are supposed to work, and the fact that our law enforcement and intelligence apparatuses are being weaponized in this way against a leading presidential contender is truly a black mark on them and on our republic.
If they do this now, it will hang over the entire election season. Scharf suggests that the Trump team move for a continuance until after the vote.
Finally, Scharf talks about Special Counsel Jack Smith and his “overzealous” prosecution of Virginia Gov. Bob McDonnell, which destroyed a Republican with a rising political career. Scharf raised concerns about why they picked Smith.
(6) Jack Smith: Why him?
If you could pick any lawyer in the country to handle a controversial case against a former president, a case involving an aggressive, unprecedented use of the Espionage Act, a controversial law in and of itself, what lawyer would you pick?
You’d…
— Will Scharf (@willscharf) June 15, 2023
SCOTUS unanimously overturned the decision on review, finding that the prosecutors went too far in going after actions that may not even have been illegal regarding gifts McDonnell and his wife received.
Now we’ll have to see what happens here as the facts in the Trump case come out and we see how the evidence truly stacks up.
It’s not a legal issue, but it strikes me how this all seems to do one thing - remove Trump’s support, by accusing him of harming the USA in a way his supporters care about (national security). It seems too good to be true for the left.
The whole thing stinks.
.
Does everyone remember what every FOX guest said for 10 days after it became known Biden had Docs at multiple locations and it was hidden?
They kept using this word, and Congressman and Senators even said they were going to bring legislation to remedy it. DoJ Prosecutors said it was a Problem.
Strangely, they forgot all about it:
OverClassification.
.
The Net says JFK jr and Trump is the winning ticket W Tucker C for AG !
JFK Jr just came out againt gun control ...I’m a constitutional absolutist. We can argue about whether the Second Amendment was intended to protect guns. That argument has now been settled by the Supreme Court.”....he is now Leading the pack by far .
Half kidding...
Get Johnny Depp’s attorney. She’ll snicker these a__holes
right out of the courtroom!
He needs the sharpest minds in the business. This is high
stakes and I’m not convinced he’s had the greatest of
representation over the last three years.
He needs a team of piranhas to take these guys down to the
bones if need be.
If done right, it should expose this prosecutor, his team,
the FBI, and the CIA to federal indictments.
The point is...there is a mountain of law on the side of the President, and not the one sided agitprop from Mad Jack and his merry band of Political Assassins.
The first few paragraphs of this analysis should be enough to have the entire case dismissed summarily at the outset, but undoubtedly the Frozen Faced Bolsheviks from Garlandia will scream vehemently. We’ll see if Judge Cannon has the sense to step back from the abyss of civil war, which is basically where this leads.
Good thing the Ratz stole the election and turned the world upside down, huh?
We’ll see if they have the stones to withstand what they started.
“Now some might point to the alleged call that is mentioned in the indictment where Trump allegedly displayed a document to someone else and claimed it was “secret.””
A democrat defense:
Hey I just didn’t want to tell him about it so I just said that to shut him up.
Bttt
Good post. Just read through the tweets. Hopeful!
Line up the crimes of biden.
Paid millions for favorable decisions
Open border and account cartel pays into
Child trafficking at the border
Joe the liar and corrupt
Destroying this country
Well thought out view of the flaws in the whole “Get Trump” conspiracy.
Lots of govt lawyers should be disbarred and jailed over their criminal, unethical and treasonous (undercutting the Constitution) behavior.
Bkmk for later
From 1917 (Espionage Act passage) to 1978 (Presidential Records Act passage), no ex President was ever charged or tried for having National Defense Information even though they took personal possession of their Presidential records (which presumably contained NDI) after leaving office. This infers right there that the Espionage Act does not apply to ex Presidents.
As far as an attack on Iran...Probably 10 plans at any one time. That's why those stick pins are moveable.
Too bad Tony Buzbee is busy with the Ken Paxton thing....
Now if we just had juries that knew their rights and powers this would not proceed past the first jury meeting where they ask the judge/prosecutor about the title 42 law and why it doesn’t apply. Then in 12 angry men style acquit.
“Now some might point to the alleged call that is mentioned in the indictment where Trump allegedly displayed a document to someone else and claimed it was “secret.””
A democrat defense:
Hey I just didn’t want to tell him about it so I just said that to shut him up.>>. More likely the document was the measurements for his wife’s shoulder holster which included her bra size.
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