Presidential Records Act, Not Espionage Act, Applies to Classified Records Indictment Against Trump: Attorney

Jesse Binnall, an attorney for President Donald Trump's campaign arrives for a Senate Homeland Security and Governmental Affairs Committee hearing to discuss election "irregularities," in Washington on Dec. 16, 2020. Greg Nash/Pool/Getty Images

A Trump lawyer, Jesse Binnall, says the new indictment that the Biden administration is pursuing against former President Donald Trump over his handling of classified records won’t hold up against the law.

Jesse Binnall, one of Trump’s lawyers and a partner at Binnall Law Group, told EpochTV’s “Crossroads“ program on June 9 that the former president can’t be charged under the Espionage Act that the Department of Justice (DOJ) is pursuing.

“Congress has been very, very clear. They have said—and there’s reasons for this that go back to the constitutional duties and obligations and rights of presidents—that the act that applies to presidents and former presidents is the Presidential Records.

“The act that applies to everyone else is the Espionage Act, which has different requirements,” Binnall said.

DOJ special counsel Jack Smith, who was appointed in November of last year to investigate Trump over his possession of classified documents after leaving the White House, unsealed an indictment against Trump on June 9.

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The federal government is alleging that Trump violated the Espionage Act and other laws after some classified documents were found in his Mar-a-Lago estate last summer. Trump has said he had the right to declassify those records as president and decries the FBI’s raid of his Florida home as unjust.

FBI agents seized more than 11,000 materials without classified markings and about 100 records marked classified during an Aug. 8 raid that was approved by a U.S. magistrate judge, according to an inventory filed with a federal court.

According to the inventory list, agents also took more than 1,600 newspaper and magazine articles, empty folders, articles of clothing, books, and gifts.

Binnall, who is not representing Trump on the documents matter, said after reading the indictment that by pursuing their charges against Trump, the DOJ is applying a two-tiered system of justice out of animosity against Trump.

“For instance, when Joe Biden had documents from his time as a United States senator and vice president, he wasn’t under the Presidential Records Act. He didn’t have to be all the protections and rights under the Presidential Records Act, he was under the Federal Records Act and he was under the Espionage Act.

“Senator Clinton, when she had her classified documents scandal that James Comey famously declined to prosecute, she was also under the Espionage Act and under the Federal Records Act; not under the Presidential Records Act,” Binnall said. “Those are cases that could have actually been brought under the Espionage Act.

“This case is absolutely inappropriate to be brought under the Espionage Act. It does not apply, which is why it will not withstand legal scrutiny.”

Weaponization of DOJ

Binnall said that, following years of controversial actions by U.S. government actors, Smith’s indictment only further highlights how certain political figures are politicizing the Justice Department for their own interests.

“The real problem here is that [Attorney General] Merrick Garland knew exactly what he was getting when he appointed Jack Smith as 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—because Democrats are absolutely terrified of Donald Trump because he’s the first president in recent American history to actually stand up for the American people and stand up against the D.C. bureaucracy, and they cannot have him back in the presidency.

“The truth is that personnel is always policy. So when you appoint somebody like Jack Smith to go after Donald Trump, and then you appoint other people to essentially paper over the allegations against President Biden and against Mike Pence, then you see this dual system of justice that we have in this country.

“And we see the gaslighting from Jack Smith, saying that there’s one set of laws that apply to everyone,” he said of Smith’s speech when announcing the indictment. “It would be so comical if it wasn’t so offensive.”

“This is a Department of Justice that has specifically looked past very serious classified document mishandling by Hillary Clinton, they’ve done the same thing regarding Joe Biden, and they’ve made it very clear that there is one set of laws that apply to Democrats—people that support the Department of Justice weaponization—and a separate set of laws that apply to everyone else.”

Binnall said that the disparate treatment between political figures demonstrates how the DOJ is “unfortunately being turned into a tool of the permanent Washington D.C. bureaucracy rather than being subservient to the American people.

“That entire system is unconstitutional. It is an affront to the government that the founders gave us, worked so hard, died for.”

Violations of Attorney-Client Privilege

Binnall said that reading the indictment brought back some “very hardened memories” of civil rights violations he has witnessed over the years when crossing paths with Smith and his team when he led the DOJ’s Public Integrity Section.

The team of the former public integrity chief failed to filter out privileged communications “such as communications between a lawyer and a client, communications between spouses, and communications with clergy” for one of my clients at the time, Binnall said.

“They had all of my communications, emails and text message conversations, between me and my client,” he said. Binnall was referring to a case that was later dismissed by the judge based on prosecutorial misconduct by Smith’s team.

And now, history is repeating itself.

“We know from the indictment that Jack Smith abused an allegation of the crime-fraud exception to the attorney-client privilege by taking instances when Donald Trump was very clearly asking for legal advice and instead of protecting the attorney-client privilege, he forced the attorneys to turn over their communications with the client,“ Binnall told Philipp. ”That’s not only just a violation of privilege, that’s a violation of the Sixth Amendment to the United States Constitution.

“We know from things that President Trump’s former lawyer, Tim Parlatore, has said, that Jack Smith’s office has also asked him to violate or waive the attorney-client privilege. His disregard for the United States Constitution is the real story.”

Special counsel Jack Smith delivers remarks on a recently unsealed indictment against former President Donald Trump at the Justice Department in Washington on on June 9, 2023. Alex Wong/Getty Images

Binnall also pointed to Smith’s appeal on behalf of the federal government for a speedy trial.

“Speedy trial is a right of defendants, not the government,“ he said. ”So once again, you have Jack Smith up there mischaracterizing the law because he wants to obviously steamroll President Trump.”

Knowing this history, Binnall expects in this case to see motions to dismiss for prosecutorial misconduct.

“I think you’re going to see motions to suppress, based on the violation of attorney-client privilege, and you’re going to see President Trump’s lawyers get up there and stand up, not only for the constitutional rights of Donald Trump but the constitutional rights of all Americans. Because if they can do this to the former president of the United States, they can do this to anyone.”

Smith is also leading an ongoing investigation into whether Trump broke any laws in raising objections about the 2020 election results and are investigating Trump’s role in the breach of the U.S. Capitol on Jan. 6, 2021.

A registered independent and veteran federal prosecutor, Smith had been serving as chief prosecutor of the special court in The Hague before this appointment.

Congress Can Rebalance Power

Binnall said that for Americans to reclaim their power over a runaway bureaucracy, they must ask their representatives in Congress to act.

“The founders gave [Congress] a very important tool. They saw that something like this could happen, and they gave [them] the tool of the power of the purse—to make sure that if you have a renegade executive, that Congress can essentially shut it down by failing to fund it.

“We have a duty to demand that our members of Congress fight back against this,” he said.

“The unfortunate thing is, a lot of times, you have members of Congress that don’t have the courage to stand up to it. We need to make sure that these members of Congress have courage by making sure that we all call Congress and demand Congress uses its constitutional obligation to stand up to the Department of Justice; demand oversight, demand hearings, and make sure that funding is cut.”

“If we don’t stand up for them, and if we don’t do that, if we don’t win this next election and make sure that Donald Trump—the person that the permanent D.C. bureaucracy hates more than anyone else—is back as our as our president and is able to win, we’re not gonna have a country anymore.

“President Trump is absolutely right about this. This isn’t the most important election of our lifetime, this is the most important election of American history,” he added.

Rep. Andy Biggs (R-Ariz.) speaks with a reporter in Washington on April 25, 2023. Courtesy NTD

Rep. Andy Biggs (R-Ariz.), chairman of the Judiciary Subcommittee on Crime and Federal Government Surveillance, agrees with Binnall on the need to reign in “rogue” government agencies of unelected bureaucrats.

“The Department of Justice was not created by the executive branch, it was created by the legislative branch. That means we can go in and denude them of a policy authority, investigative authority, we can redirect their jurisdictional authority, we can use money,” Biggs told Philipp.

“There’s no reason in the world that we should be funding a new headquarters for the FBI that is bigger than the Pentagon, for Pete’s sakes. These are things we have jurisdiction over and these are our checks. And this is what we can do to bring them back in balance. And, that means, for instance with the FBI, the crime lab is important and good and used but there are other subheadings within the FBI that could probably be done away with. And the same thing with the DOJ.

“The action that we can take constitutionally, since we don’t have police power, is to limit their funding, limit jurisdiction, limit their rulemaking authority, limit their policymaking authority, limiting their ability to enforce certain policies.

“I have been advocating, oddly enough, that for several years,” Biggs said. “Hopefully, some of my colleagues will get on the bus with me now and we can actually do something to limit both the funding but the jurisdictional authorities of these rogue agencies, which have been politicized and weaponized.

“The swamp in Washington D.C. is really deep and really broad. And they’re fighting us every step of the way on it. I think we’re turning into a left-wing authoritarian state, and that’s what you’re seeing with weaponization not just of DOJ.

“It’s being done for political purposes and that’s what makes it particularly pernicious. That’s why my colleagues, I hope, will join me in these efforts to rein them in.”

Zachary Stieber contributed to this report.