Proving a defendant’s intent and knowledge can often be tough. But it’s even tougher here because of the Presidential Records Act.
I [Matt Scharf] 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
A lot of my friends have spoken insightfully about the scope of the Presidential Records Act. I’d direct you to Mike Davis’s (@mrddmia) commentary on the subject, and also Michael Bekesha of @JudicialWatch’s piece yesterday in the @WSJ about the Clinton Sock Drawer Case.
Basically, their argument distills down to the idea 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 required under the statute.
I want to make a different point relating to the intent elements in § 793(e) 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, and also that the Defendant KNEW that there was a government official entitled to receive the Information, and also that the Defendant 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.
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 NARA, and he has the right to keep his Personal Records.
Based on the documents I’ve read and his actions that I’ve read about, I believe that 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 that NARA simply had no right to receive them at all. Meaning that 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.
This is not a matter of
[Classified Documents]+[Mar a Lago bathroom]=Conviction.
That’s what they want you to think, and that’s the media’s inch deep view, typically, 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.
2. Classification and National Defense Information
I want to reiterate this point because it’s really important:
Just because something is classified—even Top Secret, SCI, NOFORN, FISA, pick your alphabet soup—does not mean that it is National Defense Information (NDI) within the meaning of the Espionage Act.
NDI, for the purposes of an Espionage Act § 793(e) prosecution, is defined as one of a long list of items “relating to the national defense which information the possessor had reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.”
A lot of the documents listed in the indictment are older, or seemingly random. Would Trump in 2022 have had reason to know that a 2019 briefing document “related to various foreign countries, with handwritten annotation in black marker” could harm the US or help foreign countries?
Tough to say, because we can’t see the documents, but that’s a question the jury is going to have to decide in the end, and Trump’s legal team needs to drive home this point over and over again:
Classification is not dispositive in this case.
Harm to America or benefit to foreign countries is the standard.
Anyone who has worked around government knows that overclassification is a huge problem. A ton of documents end up being classified because of arcane technical rules that may not reflect the real world.
If the president were to ask the Navy what’s for lunch for the next week at Coronado, for example, I’ll bet you the answer comes back with a classification marker on it.
Not everything classified constitutes NDI. Focus on the actual legal standards and statutory language, not a bunch of scary looking all caps acronyms.
3. Walt Nauta and DOJ Misconduct
Far and away the most troubling side story to emerge from this saga so far are the allegations made by Trump aide and co-defendant Walt Nauta’s lawyer last week.
You may have missed it if you blinked. Not surprisingly, the mainstream media has mostly buried this one.
Nauta’s lawyer, Stanley Woodward alleged in a court filing that during a meeting with prosecutors about his client’s case, the head of the Counterintelligence Section of DOJ’s National Security Division Jay Bratt “suggested Woodward’s judicial application [for a DC Superior Court judgeship] might be considered more favorably if he and his client cooperated against Trump.”
If true, and I find it hard to believe that Woodward just made the whole thing up, this is wild misconduct. Truly wild. It could undermine the entire case against both Trump and Nauta. It could end careers at DOJ if fairly investigated.
And a word on Stanley Woodward: I don’t know him, but I know of him. He is a highly accomplished lawyer. Spent a decade at Akin Gump, a top law firm, clerked on the DC Circuit, and has very substantial experience in government investigations. This is not some fly by night TV lawyer. He’s a real deal legal heavyweight, and he’s leveling an extremely serious allegation of misconduct against a senior official at DOJ.
Watch this issue as the case against Trump and Nauta begins to move. You’ll hear more about it, I’m sure.
Lawyer for Trump valet in Mar-a-Lago documents case alleges misconduct
4. Attorney-Client Privilege
The indictment relies on a significant amount of information received, in one form or another, from one of Trump’s lawyers, Evan Corcoran, who was compelled to testify in front of the grand jury. According to news reports, the argument for breaching the privilege was the crime fraud exception. Let’s talk a little about it.
The attorney client privilege protects from disclosure to the government confidential communications made between clients and their attorneys. It has been around for centuries, and is considered a core protection in our system of justice.
The crime fraud exception, though, allows the attorney client privilege to be broken in rare circumstances when two requirements are met:
First, there needs to be a prima facie showing that the client was engaged in criminal conduct.
Second, the client has to have obtained or sought the attorney’s assistance in furthering that crime.
I haven’t seen DOJ’s filings on Corcoran, but I’d be interested to know how they argued this. First of all, what was the crime they used as a predicate? Was it unlawful retention of the documents? If so, there’s nothing in the indictment that I can see indicating that Corcoran’s communications with Trump would have furthered that in a way that would justify breaching privilege.
Was it obstruction? I think this is the most likely option: they pierced attorney client privilege using obstruction as the predicate crime for the crime fraud exception, saying that Trump’s conversations with Corcoran amounted to him attempting to enlist Corcoran in a criminal obstruction scheme.
Now, we’ll see how that goes for the Government. I have my doubts.
But if that’s the case, just reading this indictment, it feels like the obstruction charges may have been structured specifically in part just to get Corcoran’s testimony in, to help buttress what would otherwise be a much weaker case against Trump on the substantive charges.
In any case, the Special Counsel is going to have to show why the communications in question were a solicitation by Trump to Corcoran to join him in criminal acts, as opposed to Trump asking a lawyer he hired to advise him on his legal defense, to tell him what his options were, or to outline what defensive steps might be possible, and what was done by others in previous cases like Hillary’s emails.
Reading the conversations in the indictment, they sound a lot more like honest attorney client communications than they do crime fraud to me, even with all ellipses and modifications.
I expect a motion by Trump’s legal team on this issue, and if they win that will cut the guts out of much of this case. Very tough to prove up intent and willfulness the way the government needs to without Corcoran, at least based on what we see in the indictment.
5. Timing: Why Now?
This is not a legal defect in the indictment, but it’s an important point. Why are they bringing this case now?
They know that Trump is the leading candidate for president. They know he’s beating Biden in the polls. They must know how bad it looks for a sitting president’s DOJ to indict that president’s primary political opponent.
DOJ has long had policies in place to prevent new indictments from being brought, or overt investigative acts being committed, in the months preceding an election in order to avoid the appearance of political timing. The same reasoning clearly applies here.
They didn’t have a statute of limitations issue, they could have easily just announced the facts as they saw them after the search warrant was executed and all the documents were recovered, and then held off on further investigative acts and the indictment until after November 2024.
The fact that they didn’t is strong evidence to me that a big part of this is the burning desire among many on the left to “Get Trump.” They don’t care about the law, they don’t care about the facts, they don’t care about norms or propriety or anything else. They just want Trump in cuffs.
It’s not the way things are supposed to work, and the fact that our law enforcement and intelligence apparatuses are being weaponized in this way against a leading presidential contender is truly a black mark on them and on our republic.
If I were Trump’s lawyers, I would consider moving to continue further proceedings until after November 2024. Let the case sit. The country doesn’t need to litigate this right now. We need to pick our next president. If DOJ won’t agree to that continuance, let them explain why this has to happen right now. There is no good reason that I can see.
6. Jack Smith: Why Him?
If you could pick any lawyer in the country to handle a controversial case against a former president, a case involving an aggressive, unprecedented use of the Espionage Act, a controversial law in and of itself, what lawyer would you pick?
You’d probably want just a consummate professional, right? Career prosecutor with no political profile at all? White knight in shining armor who’s never lost a case?
Or you could pick Jack Smith.
I follow law stuff pretty closely. I’m a huge nerd. I knew who Jack Smith was before this, and the specific case he is most closely associated with in the public eye was the prosecution of Virginia Governor Bob McDonnell.
Remember that one? Using a very aggressive interpretation of the scope of federal bribery and honest services fraud statutes, Smith nuked the career and life of a popular Republican politician, before having all his convictions overturned by the Supreme Court in a 9-0 [8-0] opinion.
You read that right, all nine Supreme Court justices smacked Jack Smith down for an overzealous, legally defective prosecution of a Republican politician. SCOTUS gutted him so badly that DOJ didn’t even try to re-try the case. They just dropped it.
And his wife is a leftist filmmaker who produced a hagiography of Michelle Obama.
And he currently lives in the Netherlands. Didn’t they have anyone else good on this side of the Atlantic?
If this is not a political prosecution, if Merrick Garland wasn’t just trying to “Get Trump,” then why was Jack Smith the pick? Like the timing, the decision just reeks of politics.
By Will Scharf
