Is The Trump Indictment A Bit Like The Neocon War On Russia?

Let’s see …

An interesting similarity is that many of the same people who are insanely focused on ousting Trump from public life, whatever the cost to our constitutional regime, are also all in on the war. For example, think of people like Bluto Barr and Mitch McConnell—who regularly states in public that Ukraine is our number one priority as a nation. Think, too, of the Neocons who feared that Trump would overturn the Interagency’s policy of instigating war with Russia (and then with China). That’s what the whole fake impeachment was about. It’s more or less the same people.

Now, as regards Russia, we’ve fallen flat on our faces. How to tell? I would argue that there are at least two clear signs of this realization. The first is related to the second. First, we’ve seen for several weeks now a concerted effort to gaslight the world with regard to the Nordstream terror attack. The idea is being put out by the usual suspects that the deed was perpetrated by six Ukrainians on a yacht. The notion is so absurd that I’ve mostly ignored it, but I agree with Larry Johnson that this is no more than a “fable”. The obvious intent is to shift blame from the real guilty party: The US. That brings us to the second signal, which is chatter among the war party about ways to bring Russia to the negotiating table so that Russia can agree to a NATO victory of some sort. That’s just not gonna happen, as Putin made very clear yesterday. However, shifting the blame for Nordstream seems to be a prelude—in war mongering minds—to inducing Russia to join in a charade that helps NATO save face.

In other words, we’re seeing a variety of subterfuges being deployed that stem from gross under estimations of Putin and of the Russian military—as well as over estimations of our own capabilities. These subterfuges are being deployed for use in the foreign policy field, but also for use for gaslighting the public back home—to try to fool the citizenry into not exacting electoral revenge on the incompetents who got us in this fix.

In a somewhat similar fashion we’re seeing a number of sidestepping legal maneuvers being deployed in the latest Get-Trump scheme. It doesn’t appear that Trump’s lawyers have been taken in, and I’m going to bet for now that the courts won’t be fooled, either. I know, I know. I was wrong about Barr. Still, it’s worth going over an article from The Epoch Times that describes what certainly looks like gaslighting that may be aimed more at the public than at the courts. If so, this looks like an under estimation of Trump—again.

Here’s the article:

Trump Indictment Rests On Untested Legal Theory, Experts Say

It’s worth noting at the outset that the prosecutor put in charge of getting Trump in the federal courts is the same headhunter whose persecution of former Virginia governor Robert McDonnell on a tendentious interpretation of the law was laughed out of court by the SCOTUS, 9-0. He’s now publicly mouthing obvious falsehoods with regard to the Trump indictment, such as that "We have one set of laws in this country and they apply to everyone." It’s patently untrue—not all laws apply to everyone, and it fact that will be one of the main issues in the Trump case. Trump’s lawyers have a very strong argument that the Presidential Records Act (PRA) applies to the president and the president alone, while the Espionage Act applies to everyone but the president. The prosecutors public statements are very obvious attempts to gaslight the jury pool, as have been the continual leaks.

Now, I’m not a former prosecutor. I rely on my on analysis of the views of others whom I assess to be reliable. So I’m pleased to see experts pointing out that there’s a lot of sidestepping going on in the case against Trump. The gaslighting for public consumption would have us believe that the case is about “classified documents”, but the reality is something rather different. This would not be going on, in my belief, if the prosecutors were truly confident in their case:

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.

To be absolutely clear, not all “national defense information” is classified. Charging a law that speaks only about “national defense information” without mentioning classification is totally different than what most of the public has been led to believe. This simply isn’t about “classified documents”. Further the vagueness of the term “national defense information” means that the prosecution faces real difficulties in making its case. That includes the question of whether any charges should have been brought under the Espionage Act, which reflects the issue that came before the SCOTUS in the McDonnell case that was tossed:

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.

That business about the interplay between the PRA and the Espionage Act is key to all this: The PRA is not a criminal statute. It cannot be used to prosecute a former president:

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 has never been an attempt to use the Espionage Act to prosecute a president for retaining records after his term in office—for good reason:

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.

Davis presents here the DoJ view, and promises it won’t work:

“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.

We mentioned the difficulty involved in proving a violation of the Espionage Act, especially in this case. That difficulty arise for two reasons: The vagueness of the language, and the unique status of the president with regard to government documents—the whole business of the unitary executive that we discussed yesterday. What this leads to is real problems when it comes to proving “intent”, which is a key element of the Espionage Act:

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. For example, the indictment makes much of the fact that some (but not all) of the boxes of documents and other paraphernalia (newspaper clippings, etc.) were moved at various times. Supposedly this was to hide and retain “national defense information”. Problem: The prosecution presents no evidence that Trump actually knew what documents were in what boxes. That being the case, intent to conceal documents becomes rather problematic:

The indictment doesn’t explain how Trump was supposed to know of these specific documents. It presents no evidence of any criminal intention on Trump’s part to take and keep these documents.

“There are serious, serious legal infirmities in the arguments that they’re using,” Scharf said.

That means that if these Espionage Act charges fail, the prosecution is left to argue obstruction of justice charges, based on Trump moving the boxes. But that, too, is problematic:

If the Espionage Act charges won’t withstand judicial scrutiny, the additional obstruction charges shouldn’t stand on their own, he argued.

“There’s a longstanding DOJ practice that you don’t indict for obstruction, or for really any process-related crime, unless there’s underlying criminality,” Scharf said. “So if the DOJ launches an investigation into something, somebody allegedly obstructs that investigation, but it turns out the investigation itself wasn’t well founded, that typically won’t result in an indictment [for “obstruction”].”

Again, as in the war on Russia, the prosecutors appear to have launched their war on Trump without clearly gaming out where this was all headed. The Neocons apparently thought the announcement of sanctions shock and awe would collapse Russia, obviating the need for the hard slog of fighting an actual war. In this war on Trump, is the presumption that Espionage Act shock and awe would scare Trump off the field of battle, induce him to retire from public life? As with Russia, in which case there were plenty of people warning that the policy was misguided, so too with Trump. Trump is the kind of person who seems to thrive on adversity. It’s true 2020 didn’t work out. But if the Dems are putting all their eggs in the Espionage Act basket they may yet regret that. Just like the Neocons.

Now, in conclusion I do want to highly recommend that readers go to the original article. There’s a lot there and, in particular, there’s a lengthy section in the second half that takes a deep dive into prosecutorial—and possibly judicial—misconduct. Without going into the detailed facts and arguments about unethical conduct by the prosecutors, an experienced former federal prosecutor is quoted in the conclusion, and his words sum it all up:

“Personnel is always policy.

“Merrick Garland knew exactly what he was getting when he appointed Jack Smith, the special counsel. He appointed a zealot. He appointed a Trump hater. He appointed somebody that he knew was going to stop at nothing to go after and get Trump.”

The contrast between Smith’s aggressive pursuit of the case compared to FBI’s cautious approach in its investigation of Hillary Clinton’s emails speaks to unequal application of the law, he suggested.

“What we have right here is the very idea that you would always find an excuse to give a pass to people like [President] Joe Biden and Hillary Clinton, and always find an excuse to go after Donald Trump,” Binnall said.

And here’s the lurking problem for the Dems: A lot of Americans get that. Even people who may not personally be fans of Trump and his style already understand what’s going on. It’s like obscenity—funny how that comparison comes to mind. People may not be able to define it, but they know it when they see it.