June 16, 2023

Since Jack Smith and his prosecutors dropped a multicount federal indictment against President Trump, multiple grounds have surfaced warranting dismissal of the embarrassing prosecutorial sideshow in South Florida. 

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Already, Smith’s indictment faces multiple legal challenges.

The Presidential Records Act, the big red elephant in the room ignored by Smith, at 42 USC §2205 (3), gives a former president unrestrained access to the presidential records which he declares to be his and gives his designated agents also access to such records.  Yes, the National Archives can take control of those records, after consultation with the former President, and any disagreement on the designation of a record is to be resolved by a United States District Court in a civil proceeding, not a criminal prosecution.

But the Presidential Records Act simply does not create an exception prohibiting the former President’s access to records marked as secret, classified, or confidential. Under the Presidential Records Act, Trump, even as a former president, has all the access he wants to all his presidential records, even those which may have been classified, and may give such access to his designated agents .  End of story.

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The Espionage Act, even if it controlled over the Presidential Records Act, which it does not, does not apply to records that have been declassified by a president, who has an absolute right to declassify any document he wants. This is Trump’s secondary argument against the “Espionage Act” charges, that he in fact declassified all documents in his possession before leaving Washington. But  Trump doesn’t even need that argument, because the Presidential Records Act (PRA) trumps the Espionage Act on the topic of classified materials. Trump can take and designate what he wants, classified or not — and give designated agents access to records – classified or not.  Plus, the notion of Trump spying for a foreign power — the original heart of the purpose of the Espionage Act — is beyond ludicrous

The grand jury illegally convened in the Republican-hating District of Columbia, indicting for acts that allegedly happened in Florida, lacks legal authority under the Constitution. First, the Sixth Amendment, which guarantees the President a right to trial by jury of his peers in the district where the crime was allegedly committed. The D.C. Grand Jury also violates federal law, which provides that all proceedings (including the grand jury) must “be in district and division in which offense committed.”  The jury also violates the DoJ’s own guidelines, which provide that “A case should not be presented to a grand jury in a district unless venue for the offense lies in that district.”  This entire action should be dismissed based on the illegal constitution of the Grand Jury being set in the District of Columbia. 

The execution of the overly-broad search warrant, authorizing a vague search for “any government and/or Presidential Records created between January 20, 2017, and January 20, 2021″ violates the specificity provision of the 4th Amendment, that a warrant must “particularly describe the place to be searched and the persons or things to be seized.”  There is nothing particular about the phrase “government records,” which could very well include non-classified records, a state birth certificate, a driver’s license, or just about anything imaginable. The overly-broad warrant in this case was a license for a witch-hunt, demanding the suppression of all evidence.

Then there’s ineffective assistance of counsel. Squealing like pigs headed to the slaughterhouse and doing their best Michael Cohen imitation, three Trump lawyers threw the time-honored, sacrosanct American protection of the attorney-client privilege in the trashcan and immediately turned state’s evidence. All this violated the President’s Sixth Amendment rights to effective assistance of counsel and warrants yet another ground for immediate dismissal.

But all that aside, in their efforts to stop Trump, Prosecutor Jack Smith, Attorney General Merrick Garland, and their federal minions have violated federal law, and specifically the Hatch Act. Let’s explore that in a bit more detail.

Specifically, 5 U.S. Code § 7323 -provides: