From Will Scharf on The Federalist.com (June 16):
I am a former assistant U.S. attorney, worked on two Supreme Court confirmations, and clerked for two federal appellate judges. I have reviewed the indictment brought by Special Counsel Jack Smith in the documents case against former President Donald Trump, and have serious concerns with the way this case is being framed in the public and with some aspects of the way the prosecution itself is being conducted.
Here are six major issues I see that need to be addressed by the special counsel’s team.
1. Interplay Between the Espionage Act and the Presidential Records Act
Others have already spoken insightfully about the scope of the Presidential Records Act (PRA). Mike Davis of the Article III Project has published and spoken on the subject, and Michael Bekesha of Judicial Watch had a fascinating article in The Wall Street Journal detailing his experience litigating the Clinton Sock Drawer Case.
I want to make a different point relating to the intent element of the Espionage Act, the statute Trump is being charged under.
Section 793(e) requires the government to prove that the defendant knew he had National Defense Information (NDI) in his possession, knew there was a government official entitled to receive the information, and 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 because of the Presidential Records Act.
The Presidential Records Act sets up a system where the president designates all records that he creates either as presidential or personal records (44 U.S.C. § 2203(b)). A former president is supposed to turn over his presidential records to the National Archives and Records Administration (NARA), and he has the right to keep his personal records.
Based on the documents I’ve read and his actions I’ve read about, I believe Trump viewed his “boxes” as his personal records under the PRA. There are statements he made, quoted in the indictment, that support that view. If Trump considered the contents of these boxes to be of purely personal interest, hence his designation of them as personal records, did he knowingly retain NDI?
Did he really think these documents, like years-old briefing notes and random maps, jumbled together with his letters, news clippings, scribbled notes, and random miscellaneous items, “could be used to the injury of the United States”? Or did he just think of them as mementos of his time in office, his personal records of the four years, akin to a journal or diary?
If he thought these boxes were his personal records, he may have believed NARA simply had no right to receive them at all — meaning he did not willfully withhold anything from an official he knew had the right to receive them because he didn’t believe that anyone had the right to receive them.
By breathlessly bandying around classification levels and markings, the special counsel is trying to make this case seem much, much simpler than it is. Classification levels do not automatically make something NDI, and having classified documents in your possession is not enough to convict here. It is simply not the case that the fact that previously classified documents were found in boxes in a Mar-a-Lago bathroom means Trump is guilty.
That’s what they want you to think, and that has the media’s inch-deep view for the most part, but it’s dead wrong.
More than anything, this case hinges on the ability of the special counsel to prove “beyond a reasonable doubt” aspects of Trump’s state of mind that will be extremely difficult to prove in this case because of his obligations and rights under the Presidential Records Act — in addition to all of the usual issues. [read more]
The other reasons are:
- Classification and National Defense Information
- Walt Nauta and DOJ Misconduct
- Attorney-Client Privilege
- Timing: Why Now?
- Jack Smith: Why Him?
Other articles on the matter:
- Biden White House facilitated DOJ's criminal probe against Trump, scuttled privilege claims: memos
- How It’s Done: JD Vance Decides to Play Hardball With Merrick Garland in Midst of Trump Indictment
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