I 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
Others have already spoken insightfully about the scope of the Presidential Records Act (PRA). Mike Davis of the Article III Project has published and spoken on the subject, and Michael Bekesha of Judicial Watch had a fascinating article in The Wall Street Journal detailing his experience litigating 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 element 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, knew there was a government official entitled to receive the information, and 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 because of the Presidential Records Act.
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 the National Archives and Records Administration (NARA), and he has the right to keep his personal records.
Based on the documents I’ve read and his actions I’ve read about, I believe 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 NARA simply had no right to receive them at all — meaning 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. It is simply not the case that the fact that previously classified documents were found in boxes in a Mar-a-Lago bathroom means Trump is guilty.
That’s what they want you to think, and that has the media’s inch-deep view for the most part, 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
Just because something is classified — even Top Secret, SCI, NOFORN, FISA, pick your alphabet soup — does not mean it is National Defense Information within the meaning of the Espionage Act. NDI, for the purposes of an Espionage Act 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 U.S. or help foreign countries?
It is tough to say because we cannot see the documents, but that is 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, there is a good chance the answer comes back with a classification marker on it.
To put it simply, not everything classified constitutes NDI. This case revolves around 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 corporate media have 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.
Woodward is a highly accomplished lawyer. He spent a decade at Akin Gump, a top law firm, clerked on the D.C. Circuit, and has very substantial experience in government investigations. This is not some fly-by-night TV lawyer. He is a legal heavyweight, and he is 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. We will all hear more about it, I am sure.
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, which is worth examining in greater detail.
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 have not seen DOJ’s filings on Corcoran, but I would 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 is nothing in the indictment that I can see indicating 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 will see how this theory goes for the government. I have my doubts.
But if that is the case, just reading this indictment, it seems as though 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 Clinton’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 made by the special counsel’s team.
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. It will be very tough to prove 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 is an important point nonetheless. Why are they bringing this case now?
They know Trump is the leading candidate for president. They know he is 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.
The special counsel’s team did not 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 did not follow that course 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.
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.
The single case Jack Smith is most publicly associated with was the prosecution of Virginia Gov. Bob McDonnell.
In that case, 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 unanimous opinion.
A unanimous Supreme Court smacked Smith down for an overzealous, legally defective prosecution of a Republican politician, and the opinion was so devastating that DOJ did not even attempt to retry the case. It was just dropped.
As has been noted publicly as well, Smith’s wife is a leftist filmmaker who produced a hagiography of Michelle Obama, and he currently lives in the Netherlands. Was there not anyone else up to the task 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 reeks of politics.
Will Scharf is a former federal prosecutor, who also worked on the confirmations of Supreme Court Justices Brett Kavanaugh and Amy Coney Barrett. He is currently a Republican candidate for Missouri Attorney General.
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