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.
Trump was arraigned and pleaded not guilty to all 37 charges on June 13 and then laid out some details of his defense in a subsequent speech.
The case has been portrayed in the media as being about Trump’s retention of 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.
The alleged 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.
The Presidential Records Act of 1978 stipulates that after a president leaves office, the National Archive and Records Administration (NARA) takes custody of all of his official records.
The law allows former presidents to keep personal documents such as “diaries, journals, or other personal notes” not used for government business.
However, the Presidential Records Act isn’t a criminal statute. If a former president refuses to turn over some documents or claims documents that are obviously official as personal, the worst he could face is a civil lawsuit.
There’s little case law on such matters. In 2012, Judicial Watch tried to force former President Bill Clinton to turn over dozens of interview tapes from his presidency that he had kept. Clinton claimed that the tapes were personal, and the court sided with him. Judge Amy Berman Jackson, an appointee of President Barack Obama, went so far as to argue that the court had no way to second-guess a president’s assertion of what is or isn’t personal.
Trump called the case the “crucial legal precedent” that allowed him to keep whatever documents he wanted to keep. He noted that the Clinton tapes included conversations on sensitive topics such as trade negotiations and military activities, as well as conversations with foreign leaders..
The case was tried in the District of Columbia and isn’t a controlling precedent in Florida, where Trump faces the charges.
The Department of Justice (DOJ) is now arguing that former presidents can be charged under the Espionage Act of 1917 for possession of documents that they kept from their presidencies.
“That’s a totally novel legal issue,” Scharf said. “It’s never been tested before. The Espionage Act has never been used to prosecute in this sort of a setting.”
Some lawyers believe that 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 has 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 who represented Trump in another matter.
Mike Davis of the conservative Article III Project voiced a similar opinion.
Criminal Intent
Much of the indictment rests on the allegation that Trump kept national defense documents “willfully” and with criminal intent.Yet the document falls short of providing evidence for such intent.
On May 11, 2022, the DOJ obtained a subpoena compelling Trump to turn over all documents with classification markings, including electronic ones.
One of the key claims is that Trump instructed Nauta to move boxes of documents around before his lawyer came to search the boxes for documents in response to the subpoena.
Nauta allegedly took 64 boxes—three boxes on May 24, 50 boxes on May 20, and 11 boxes on June 1—out of a storage room where Trump had kept items and documents from his presidency and moved them to Trump’s residence at the resort in Palm Beach, Florida. Nauta then moved back 30 boxes on June 2, shortly before Trump’s then-lawyer, Evan Corcoran, searched the storage room for the subpoenaed documents, according to the indictment, which refers to security camera footage obtained from Trump’s Mar-a-Lago resort via a subpoena.
The indictment alleges that the boxes were moved to hide responsive documents from Corcoran. It presents a text message in which Nauta said Trump told him to put some boxes in his room.
“I think he wanted to pick from them,” Nauta wrote to an undisclosed member of Trump’s family, in a text message.
There’s no word of whether Trump, in fact, went through the boxes and, if so, what he was looking for.
“These boxes were containing all types of personal belongings, many many things, shirts and shoes and everything,” Trump said.
Moreover, based on the timeline sketched by the indictment, it’s unclear whether it would have been possible for Trump to review their contents.
“I hadn’t had a chance to go through all the boxes. It’s a long, tedious job—takes a long time—which I was prepared to do, but I have a very busy life,” Trump said.
On Aug. 8, 2022, when the FBI raided Trump’s Mar-a-Lago home, 102 documents with classified markings were found in the storage room and in Trump’s office.
Some lawyers have argued that Trump should have challenged the subpoena in court because it was too broad. It’s likely that Trump had many documents with classification markings that had been declassified. Reams of such documents are available online.
Also, the subpoena mentioned nothing about national defense information, which doesn’t need to bear classification markings.
The indictment states that Trump’s alleged crime of willfully retaining 31 specific documents related to national defense started on Jan. 21, 2021, after he allegedly “caused” boxes of materials from his presidency to be shipped to Mar-a-Lago.
The indictment doesn’t explain how Trump was supposed to know about 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.
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.”
When it comes to investigations involving Trump, however, prosecutors have mainly brought process-crime charges alone, such as in the cases of Trump’s former national security adviser, Lt. Gen. Michael Flynn, and his 2016 presidential campaign adviser George Papadopoulos.
“I think in this case, especially, you’re seeing this weaponization of process crimes that the FBI has begun to use, where they will, under some flimsy or some circumstantial premise, open an investigation on somebody for something and then during the course of that investigation hope that they can bring charges that are process crimes,” said former FBI agent and whistleblower Steve Friend.
The Clinton Treatment
There are indications that Trump expected to be able to deal with the government in a similar way as did Clinton and his wife, former Secretary of State Hillary Clinton.In a CNN town hall earlier this year, Trump said that based on the Presidential Records Act, he was allowed to “negotiate” with NARA on what he could and couldn’t keep as personal items. NARA has rejected such an interpretation, but Trump was likely referring to the 2012 Clinton case.
The indictment also indicates that Trump questioned his lawyers on whether he could handle the subpoena similarly to how Hillary Clinton did in 2015, when her lawyers infamously sorted through her emails from her State Department tenure and had about half of them deleted, claiming that they weren’t work-related. The FBI later found out thousands of work-related emails were missing from the half handed over by her lawyers.
“Wouldn’t it be better if we just told them we don’t have anything here?” Trump allegedly asked his lawyers, and recounted the Clinton episode multiple times.
Binnall said that those were “absolutely valid legal questions” for Trump to raise.
Prosecutorial Misconduct
The latest case against Trump was brought by Jack Smith, a former federal prosecutor who was appointed special counsel by Attorney General Merrick Garland on Nov. 18, 2022.Smith has been criticized by Republicans for allowing his prosecutors to go rogue, both in this case and in his prior role as head of the DOJ’s Public Integrity Section.
Binnall recalled that a decade ago, prosecutors under Smith violated a defendant’s constitutional rights before a grand jury, leading the court to dismiss charges against the defendant. In the same case, prosecutors seized his client’s phone and failed to use a filter team to prevent the investigators from seeing Binnall’s privileged communications with his client, he said.
In the Trump case, Smith managed to get a judicial order to pierce Trump’s client-attorney privilege during the initial grand jury proceedings in Washington before the case was moved to Florida. But that issue could be relitigated, Binnall suggested.
“I think you’re going to see motions to suppress [evidence] based on the violation of attorney-client privilege,” he said.
“I think that that did irreparably taint the grand jury proceedings,” he said.
Parlatore pointed out that the responsible district court judge, Beryl Howell, handed over Corcoran’s communications with Trump to prosecutors so quickly that it effectively denied Trump the right to appeal that decision and ask the circuit court to put it on hold.
“I would expect that this would get reversed,” he said.
Trump’s lawyers also may try to remove from trial evidence obtained during the Mar-a-Lago raid on the grounds that the search warrant was overbroad, according to William Shipley, a former federal prosecutor who now represents many people charged in relation to the Jan. 6 Capitol protest and breach.
“The issue is the failure to describe ‘with particularity’ the items to be seized,” Shipley wrote in a tweet.
Losing the raid evidence would seriously undermine or at least delay the case, he said.
Binnall also predicted that there will be attempts to have the case tossed for prosecutorial misconduct.
Parlatore told the media that he saw multiple instances of such misconduct when he voluntarily sat down for questioning before a grand jury. One of the prosecutors accused him of “refusing” to answer a question that pertained to privileged attorney-client conversations, and Parlatore had to remind the jurors that he wasn’t refusing but was rather barred by ethical rules from answering, he told CBS News.
There also have been reports that prosecutors implied to the attorney for Nauta that his application for judgeship in Washington could be tied to his client’s willingness to cooperate.
“That is another clear example of prosecutorial misconduct,” Binnall said, arguing that Garland’s appointment of Smith betrayed his bias. “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 and the FBI’s cautious approach in its investigation of Hillary Clinton’s emails speaks to unequal application of the law, he said.
“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.
