The media’s pronouncements that Donald Trump is almost certainly guilty of crimes are based on an ignorance of the law and a blinding political bias. As is often the case with capacious fiats mouthed by the featherhead class, the opposite is true.
The former president has several viable defenses. Some will be offered in pre-trial motions challenging the 37 charges in a Florida grand jury indictment related to his handling of alleged classified documents. These motions are appealable if denied. Such interlocutory petitions and arguments are laborious and time-consuming. They render Special Counsel Jack Smith’s stated ambition of a “speedy trial” fanciful, at best.
Presidential Records Act
Trump’s principal defense rests with the Presidential Records Act (PRA). It is not “farcical” as former Attorney General William Barr claims. It was a law passed by Congress in 1978 that granted an exclusive right of former presidents to maintain custody and control of presidential papers accrued during their terms in office. Arguably, it includes classified documents.
So, what does that law mean?
For more than a decade, it was the considered opinion of the Department of Justice that the PRA conferred a unique right on former presidents to keep whatever presidential records they want, and the government has no authority to seize them. The National Archives agreed. A president has the sole discretion to segregate and dispose of records.
Indeed, so convinced was the DOJ of this interpretation that its lawyers defended it in U.S. District Court in Washington, D.C., in 2012. They argued that ex-President Bill Clinton was allowed to maintain custody of whatever he wanted during his two terms, including audio tapes with suspected classified information that he stored in his home. The judge, without reservation, agreed.
Forty-five years ago, Congress passed the Records Act to memorialize what previous presidents had always been permitted to do as a matter of tradition and practice. This is important since it is incumbent on courts to interpret statutes consistent with legislative intent. As The Wall Street Journal noted in a recent editorial, “If the Espionage Act means Presidents can’t retain any classified documents, then the PRA is all but meaningless.” Quite right.
Importantly, the PRA is a civil statute with no criminal penalty attached. Judge Jackson’s opinion reinforced the legal constraints on both the National Archives and the Justice Department. Their ability to retrieve documents is limited to a civil action, not criminal seizure. Hence, the proper remedy was for Attorney General Merrick Garland to bring a civil lawsuit to enforce his subpoena and allow an impartial judge to resolve the matter.
Selective Prosecution & A Lawless Warrant
A similar motion based on constitutional violations may argue that Garland snookered a Florida magistrate into signing an overly broad general search warrant that is strictly prohibited by the Fourth Amendment. If the evidence seized was accomplished by unlawful means, it constitutes an unreasonable search and seizure. The evidence would be inadmissible under the well-established exclusionary rule.
We don’t prosecute people for their thoughts or discussions. Was it unreasonable or somehow criminal for Trump to ask his lawyer if he could adopt the same obstructive tactics that Hillary Clinton and her lawyer employed to escape charges? Not at all. It’s the kind of query that attorneys field quite frequently and then disabuse.
Trump’s team will protest that criminalizing confidential conversations protected by law is an egregious overreach by Smith. Howell’s conclusions and her ruling itself are an alarming breach of a cherished principle that communications between a lawyer and client are sacrosanct.
This is an extremely high standard for prosecutors to sustain. Trump’s legal team will assert that if their client sincerely believed he was entitled to the documents under the meaning of the Presidential Records Act, as well as the court’s interpretation of it in the earlier Clinton case, then he did not harbor the requisite “corrupt” intent. It is not “immoral, depraved, or evil” to want to keep what you think is yours if you are genuinely convinced of it.
Even before the raid, Trump insisted that he was acting lawfully. Can there exist a credible motive to obstruct an investigation into a lawful act? People are not motivated to impede non-crimes. If Trump prevails in his argument that his actions were lawful under the PRA, then it seems incongruous to charge him with obstruction without an underlying crime.
Jurors Access to Classified Evidence
Prosecutors cannot simply tell everyone, “Trust us when we say that the seized documents qualify as prohibited material under the statute.” They cannot put an FBI agent or security analyst on the witness stand who vows that the 31 documents violate the Espionage Act. That is a question of fact that resides solely in the provenance of the jury. This approach would also deprive the defense of a fair and robust cross-examination.
Failure to permit the jury to read the documents themselves might well constitute reversible error. This leaves the government with the option of declassifying the records. So, imagine a trial where the former president of the United States is accused of having classified documents that have since been declassified. It sounds absurd because it is.
There is a law called the Classified Information Procedures Act (CIPA) that outlines various procedures for handling sensitive documents in court without jeopardizing national security. But CIPA is a process, not an unblemished resolution. It is replete with risks that can lead to a case being overturned on appeal.
Prosecutors also have a nasty habit of ignoring exculpatory material that is beneficial to the accused. They twist the law and contort the evidence in the most damning light possible. And sometimes they fail at proof. Especially when their seemingly invincible evidence is challenged by skillful lawyers armed with credible witnesses that, in the end, undermine the charges.
Of course, that is what a trial is for. But first, Special Counsel Jack Smith must survive a flurry of dismissal motions to which the mindless media remains oblivious.