With the recent indictment of former President Donald Trump, the United States has become Pakistan, or maybe it’s Guatemala, or Ukraine, Malaysia, Argentina or Peru, or some
other Third World country in a long list of nations that claim to have representative governments but which have a history of post-election persecution of the incumbent administration’s political opponents.
Whether you like Trump and his policies, hate him or are a Trump agnostic the United States has now entered new and dangerous political waters – and at the helm of our ship of state are some of the most power hungry and vicious political operators in our country’s history.
The unprecedented application of the Espionage Act against a former President is a clear “tell” that this is not about protecting the country’s secrets, but a cynical ploy to get Mr. Trump before a politically tainted jury in the hopes of jailing him for up to 100-years, or at the least, destroying his chances for renomination and election in 2024.
But let’s set aside the political arguments for a moment and look at the case Special Counsel Jack Smith and Attorney General Merrick Garland have presented.
As the Editors of the Wall Street Journal (who are no fans of Mr. Trump) explained, the indictment levels 37 charges against Mr. Trump that are related to his handling of classified documents, including at his Mar-a-Lago club, since he left the White House. Thirty-one of the counts are for violating the ancient and seldom-enforced Espionage Act for the “willful retention of national defense information.”
However, it is legally notable that the indictment never mentions the Presidential Records Act (PRA) that allows a President access to documents, both classified and unclassified, once he leaves office. It allows for good-faith negotiation with the National Archives. Yet the indictment assumes that Mr. Trump had no right to take any classified documents.
This doesn’t fit the spirit or letter of the PRA, which was written by Congress to recognize that such documents had previously been the property of former Presidents, noted the Wall Street Journal. If the Espionage Act means Presidents can’t retain any classified documents, then the PRA is all but meaningless. This will be central to Mr. Trump’s defense.
Much has been made in the media about whether Mr. Trump did or did not “declassify” certain documents, but according to the Presidential Records Act that is irrelevant to the issue of whether a former President can retain such records – he clearly can.
There is case law precedent on this issue as well.
The case is Judicial Watch v. National Archives and Records Administration – also known as the “Clinton sock drawer” case. Former President Bill Clinton created White House audio tapes with historian Taylor Branch and stored them in his sock drawer. Judicial Watch sued to obtain access to the tapes and lost.
“Amy Berman Jackson, the judge presiding on that case, said a couple of very important things,” said Chris Farrell, Director of Investigations at Judicial Watch. “That the president had an absolute, unreviewable right to take any records or documents that he wants when he leaves office. “
“No one can come back and second guess or double think or ask questions about what the president elects to take with him,” Farrell continued.
In her ruling, Jackson wrote that “the President enjoys unconstrained authority to make decisions regarding the disposal of documents: ‘[a]lthough the President must notify the Archivist before disposing of records . . . neither the Archivist nor Congress has the authority to veto the President’s disposal decision.’”
Farrell points out that this ruling has existed without challenge or question for ten years, and that the Trump classified documents investigation is yet another example of the double standard that exists in the U.S. justice system.
“That’s the legal standard,” Mr. Farrell said. “And that’s okay for Bill Clinton, but when you apply the same standard to Donald Trump, suddenly everybody develops amnesia. Nobody knows what you’re talking about.”
Finally, there is the question of the evidence itself – particularly the so-called Bedminster tape, wherein Mr. Trump allegedly bragged about having classified documents that were "highly confidential" and "secret," except, as Paul Sperry and others have documented, that’s not what Trump said.
As attorney Francis White (@whit1736) pointed out in a recent Twitter thread, "Confidential" and "Secret" are official classifications under the US Code. "Like, highly confidential" and "a secret" are descriptive adjectives. As the former are legal terms of art, and the latter are not, editing a transcript thusly would be prejudicial and unethical.
“Prejudicial and unethical” clearly describe what’s going on with the indictment of President Trump under the Espionage Act. The only question that remains is whether anyone in the legal system short of the Supreme Court will step in to stop our country’s descent into Third World lawlessness and dismiss these outrageous charges.
Trump indictment
Joe Biden bribery scandal
Truth Social
Classified Document
Executive privilege
Crossfire Hurricane
Presidential Records Act
Espionage Act
Tom Fitton Judicial Watch
Judicial Watch v. National Archives and Records Administration
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