Legal Opinions On Trump Indictment Incoming

I need to get this out of the way up front. I’m disappointed in one of my go-to legal analysts, Jonathan Turley. I understand that he’s a buddy of Bluto Barr and that—having read between the lines over the preceding several years—he’s probably a Never Trumper at heart, despite his fairminded handling of the faux impeachments. I expected better of him here.

Onward.

CTH has been hammering away on the Espionage Act angle—793(e). And with good reason. Obviously CTH is getting some good legal advice. Here CTH highlights a common misunderstanding. Violations of the Espionage Act need not involve “classified” documents. In fact, the entire classification system is a post WW2 innovation:

The United States government classification system is established under Executive Order 13526, the latest in a long series of executive orders on the topic beginning in 1951.

This is what CTH is talking about:

Listen Carefully, Special Counsel Jack Smith Delivers Statement Following Trump Indictment

The DOJ is not, repeat NOT, arguing a classified documents case.  The entire legal framework is centered around documents they define as vital to the defense security of the United States.  EVERYTHING is predicated on this 18 U.S. Code § 793(e) violation:

18 U.S. Code § 793 (e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it. 

Despite the verbose language in the indictment, a key element of Lawfare, the case is weak. The prosecutors know it.

CTH is absolutely correct that the Trump situation is NOT what the Espionage Act purports to be about. The use of the Espionage Act has regularly been prone to abuse, and it has always had its critics because of the very broad and vague language, such as “relating to”. Hopefully Trump’s lawyers will attack from this angle in pre-trial motions.

But there’s a more fundamental problem involved. Mike Davis weighs in (h/t Red State):

As Mike Davis, the former law clerk to Justice Neil Gorsuch and the head of the Article 3 Project, explains, it’s the Presidential Records Act [PRA] that applies here. His point? You can’t charge a crime [under the PRA] when [the act alleged] isn’t a crime under the [PRA].

Indictment confirms Garland's indictment of Trump is political:

1. Presidential Records Act, not Espionage Act, controls former president's handling of his presidential records

2. Generally, legally impossible to obstruct investigation into non-crime, per binding 2019 OLC memo

— 🇺🇸 Mike Davis 🇺🇸 (@mrddmia) June 9, 2023

He also said he doesn’t think it will ultimately survive review, and he pointed to the timing—just as the Biden bribery information dropped on Thursday.

The WSJ expands on that point regarding the PRA in a well stated editorial that does the normally rabidly anti-Trump paper credit:

A Destructive Trump Indictment. Do prosecutors understand the forces they are unleashing?
Wall Street Journal ^ | June 9, 2023 | WSJ Editorial Board

Whether you love or hate Donald Trump, his indictment by President Biden’s Justice Department is a fraught moment for American democracy. For the first time in U.S. history, the prosecutorial power of the federal government has been used against a former President who is also running against the sitting President. This is far graver than the previous indictment by a rogue New York prosecutor, and it will roil the 2024 election and U.S. politics for years to come.

Special counsel Jack Smith announced the indictment in a brief statement on Friday. But no one should be fooled: This is Attorney General Merrick Garland’s responsibility. Mr. Garland appointed Mr. Smith to provide political cover, but Mr. Garland, who reports to Mr. Biden, has the authority to overrule a special counsel’s recommendation. Americans will inevitably see this as a Garland-Biden indictment, and they are right to think so.

The indictment levels 37 charges against Mr. Trump that are related to his handling of classified documents, including at his Mar-a-Lago club, since he left the White House. Thirty-one of the counts are for violating the ancient and seldom-enforced Espionage Act for the “willful retention of national defense information.”

But it’s striking, and legally notable, that the indictment never mentions the Presidential Records Act (PRA) that allows a President access to documents, both classified and unclassified, once he leaves office. It allows for good-faith negotiation with the National Archives. Yet the indictment assumes that Mr. Trump had no right to take any classified documents.

This doesn’t fit the spirit or letter of the PRA, which was written by Congress to recognize that such documents had previously been the property of former Presidents. If the Espionage Act means Presidents can’t retain any classified documents, then the PRA is all but meaningless.

(Excerpt) Read more at wsj.com ...

Clearly a totally bad faith indictment. But you knew that already.