Proving a defendant’s intent and knowledge can often be tough. But it’s even tougher here because of the Presidential Records Act.
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 case of the document against former President Donald Trump, and have serious concerns with the way this case is being framed in 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 topic, and Michael Bekeshaw of Judicial Watch has a fascinating article in The Wall Street Journal describing his experience suing the Clinton sock drawer case.
Basically, their argument is 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 a matter of law.
I want to make a different point regarding the intent element of the Espionage Act, the statute under which Trump is charged.
Section 793(e) requires the government to prove that the defendant was in possession of National Defense Information (NDI), knew that there was a government official entitled to receive the information, and willfully failed to deliver it to that official.
This is a great set of men’s rea bars for jumping in any situation. Proving the defendant’s intent and knowledge is often tough. But it’s even tougher here because of the Presidential Records Act.
The Presidential Records Act establishes a system by which the President designates all records he creates as presidential or personal records (44 U.S.C. § 2203(b)). A former president is required to turn over his presidential records to the National Archives and Records Administration (NARA), and he retains the right to keep his personal records.
Based on the documents I’ve read and his actions I’ve read, I believe Trump views his “boxes” as his personal records under the PRA. His statements cited in the indictment support that view. If Trump considered the contents of these boxes to be of purely personal interest and therefore classified them as personal records, did he knowingly retain the NDI?
Did he really think that these documents, like years-old briefing notes and random maps, along with his letters, news clippings, written notes, and random other stuff, could “harm the United States”? Or did he think of them as the mementos of his office, his personal records of four years, a journal, or a diary?
If he thought of these boxes as his personal records, he might have believed that NARA had no right to receive them — meaning he didn’t intentionally withhold something from an official he knew had a right to receive them because he didn’t believe it. Anyone has the right to receive them.
By inflating classification levels and markings, the special counsel is trying to make this case look much simpler than it is. Classification levels do not automatically make anything NDI, and having classified documents is not enough to convict her. Previously classified documents found in boxes in the Mar-a-Lago bathroom do not mean Trump is guilty.
That’s what they want you to think, and that’s what most of the media has an inch-deep view of, but that’s wrong.
More than anything else, the case hinges on the special counsel’s ability to prove “beyond a reasonable doubt” elements of Trump’s mental state, which are difficult to prove in this case because of his obligations and rights under the Presidential Records Act. Along with all the usual issues.
2. Classification and National Defense Information
Just because something is classified — TOP SECRET, SCI, NOFORN, even FISA, pick your alphabet soup — doesn’t mean it’s national defense information within the meaning of the Espionage Act. NDI, for purposes of Espionage Act prosecution, is defined as “any of a long list of items of national defense that the holder of the information believes may be used to the injury or advantage of the United States. Any foreign country.”
Most of the documents listed in the indictment are outdated or random. Does Trump have reason to know in 2022 that a 2019 briefing document “relating to various foreign countries, with a handwritten annotation in black marker” could harm the U.S. or help foreign countries?
It’s hard to say because we can’t see the documents, but that’s a question a jury will ultimately have to decide, and Trump’s legal team will have to drive home the point over and over again: Classification is not a positive in this case. Harm to America or gain abroad is the criterion.
Anyone who has worked around government knows that overclassification is a huge problem. Tons of documents are classified due to arcane technical rules that don’t reflect the real world. For example, if the President asks the Navy what lunch will be next week in Coronado, the answer is likely to come back with a classification marker on it.
Simply put, not everything categorized has NDI. This case revolves around actual legal standards and statutory language, not scary-looking all-caps acronyms.
3. Walt Nauta and DOJ Misconduct
The most troubling side story to emerge from the saga so far is the allegations made last week by a lawyer for Trump aide and co-defendant Walt Nauta.
If you blink you might miss it. No wonder the corporate media buried it so much.
Nauta’s attorney, Stanley Woodward, said during a meeting with prosecutors about his client’s case that Jay Bratt, head of the DOJ’s National Security Division’s Counterintelligence Division, said in a court filing that Woodward could indicate a judicial application “[for a DC Superior Court judgeship]. He and his client would be viewed more favorably if they cooperated against Trump.
If true, and I find it hard to believe that Woodward just made the whole thing up, this is atrocious misconduct. Wild indeed. This could undermine the entire case against both Trump and Nauta. If investigated fairly, this could end a career at the DOJ.
Woodward was a highly accomplished lawyer. He spent a decade at the top law firm of Akin Gump, D.C. Clerk in Circuit, and has had very considerable experience in Government investigations. This isn’t some fly-by-night TV lawyer. He’s a legal heavyweight, and he’s the most serious allegation of misconduct ever brought against a senior official at the DOJ.
Watch this issue as the case against Trump and Nauta begins to move. We’ll all be hearing more about it, I’m sure.
4. Attorney-Client Privilege
The indictment is based on substantial information received in one form or another from one of Trump’s lawyers, Evan Corcoran, who was forced to testify before a grand jury. According to news reports, the claim of breach of privilege is a crime-fraud exception, which is worth examining in more detail.
Attorney-client privilege protects confidential communications between clients and their attorneys from disclosure to the government. It has been around for centuries and is considered a major safeguard in our legal system.
The criminal-fraud exception, however, allows the attorney-client privilege to be broken in rare circumstances when two requirements are met: First, it requires a prima facie showing that the client engaged in criminal conduct. Second, the client must obtain or seek the assistance of a lawyer in prosecuting that crime.
I haven’t seen the DOJ’s filings in Corcoran, but I’m interested to know how they argued this. First of all, what offense did they use for preemption? Are documents kept illegally? If so, there is nothing in the indictment that I suggest would justify the privilege of breaching Corcoran’s communications with Trump.
Obstructed? I think that’s the most likely option: They pierced the attorney-client privilege by using obstruction as a prior offense for the felony-fraud exemption, Trump’s conversations with Corcoran said he tried to enlist Corcoran in a criminal obstruction scheme.
And let’s see how this theory goes to the government. I have my doubts.
If that’s the case, the indictment reads as though the obstruction charges may have been constructed specifically to get Corcoran to testify, to help make an even weaker case against the stronger charges against Trump. .
However, the special counsel would have to show why the communications in question were made, as opposed to Trump asking Corcoran to join him in criminal proceedings, as opposed to Trump asking a Trump-appointed lawyer to advise him on his legal defense. Tell him what his options are or what defensive measures are possible and what others have done in previous cases like the Hillary Clinton emails.
Reading the conversations in the indictment, even with all the ellipsis and redactions made by the special counsel team, they sound to me far more like honest attorney-client communications than criminal fraud.
I expect a motion by Trump’s legal team on this issue, and if they win it will take a lot of guts out of this case. Based on what we see in the indictment, it would be very difficult for the government to prove intent and intent as required without Corcoran.
5. Timing: Why Now?
This is not a legal defect in the conviction, although it is an important one. Why are you making this case now?
They know that Trump will be the frontrunner for the presidency. They know he beat Biden in the election. They must know how outrageous it is for a sitting president to have the DOJ indict that president’s primary political opponent.
The DOJ has long had policies in place to prevent it from bringing new indictments or engaging in public investigative actions in the months before an election to avoid the appearance of political timing. The same reasoning clearly applies here.
The special counsel team has no statute of limitations, once a search warrant is executed and all documents are recovered they can easily declare the facts as they see them, and then stop further investigative proceedings and prosecution. After November 2024.
The fact that they haven’t followed that path is strong evidence to me that a large part of it is a burning desire among many on the left to “get Trump.” They don’t care about the law. They don’t care about facts. They don’t care about regulations or ownership or anything else. They just want Trump in cuffs.
For our law enforcement and intelligence apparatus to be weaponized in this way against a leading presidential contender is truly a black mark on them and our republic.
If I were Trump’s lawyer, I would consider continuing the trial after November 2024. Let the case stand. There is no need for the country to go to court over this now. We must elect our next president. If the DOJ won’t agree to that continuance, let them explain why it should now. No good reason that I can see.
6. Jack Smith: Why Him?
If you could choose any lawyer in the country to handle the controversial case against the former president, the aggressive, unprecedented use of the Espionage Act, the controversial law, which lawyer would you choose?
You probably just want a consummate professional, right? A career prosecutor with no political profile? A white knight in armor that never loses?
Or you can choose Jack Smith.
The only case Jack Smith is most publicly associated with is the prosecution of Virginia Governor Bob McDonnell.
In that case, by too aggressively defining the scope of federal bribery and honest services fraud laws, Smith derailed the career and life of a prominent Republican politician before all of his convictions were overturned in a unanimous opinion.
A unanimous Supreme Court struck down Smith for an overzealous, legally flawed prosecution of a Republican politician, and the opinion was so devastating that the DOJ didn’t even try to retry the case. It just fell off.
As publicly noted, Smith’s wife Michelle is a left-wing filmmaker who has produced a hagiography of Obama, and he currently lives in the Netherlands. No one else to work on this side of the Atlantic?
If this wasn’t a political prosecution, if Merrick Garland wasn’t just trying to “get Trump,” why was Jack Smith chosen? Like the timing, the decision is also about politics.