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I address the indictment of President Trump as an American citizen, as a person who spent most of his adult life as a civil, not criminal, trial lawyer, as one who hopes to make an objective analysis of the issues raised in this prosecution, the first in American history of a former President of the United States. In doing so, my take on the case may appear to some who have read the allegations in the indictment and have been shocked, mortified, and certain that he is, in the unfortunate language of a former Attorney General of the United States, “toast!”, not only different but maybe radically so. Arousing those reactions was, of course, the entire purpose of this “speaking indictment”, referred to by one pundit as basically a press release, as it was sure to be parroted by every single outlet of the mainstream media and, sadly, many of the so-called right-leaning outlets as well.
To cut to the chase, I do not believe that the former President is “toast” despite my never having occupied the august office of the Attorney General, nor do I think any responsible attorney should be making such an outlandish statement when all he has to base such a “conclusion” on are the charges in the indictment itself.
The reason is as simple as it is basic to our more and more battered system of justice and the Rule of Law. The statements made in the indictment are charges. Allegations. Period. Full stop. Additionally, try as I will to be objective in this analysis, I must note that not many days ago, most of us on the right held to — be most charitable — rather strong views about the collapse of integrity, honesty, and truthfulness of the very department which is making these charges. Now, very strangely, in my view, many of those same people are quoting these allegations as if the trial was held this past Tuesday, not just the arraignment.
I know a little about making charges as a Plaintiff’s Lawyer and then seeing excellent, sometimes brilliant, defense lawyers shred them like so much tissue paper, sending me — and my client — to the bar to drown our sorrows.
Thus, this analysis will not discuss the actual indictment against President Trump as there are many other sources readily available for those who want to subject themselves to the indignity of finding out what this document really says and, in the process, what its real purpose is. The indictment itself is accessible here. This analysis, on the other hand, will attempt to present, in summary form, the actual, well-founded defenses which can be presented on behalf of President Trump with citations to fuller discussions of each point for further exploration and research for those who wish to “get into the weeds,” to use a current buzzphrase. In that regard, it has been my experience as a trial lawyer that cases are often, if not most of the time, won or lost on the basis of a document, a witness, a report, a photograph, a statute found by someone who had taken the time to “get into the weeds.”
Not as enticing or exciting as the 49 pages of unnecessary verbiage contained in this indictment, perhaps, but this case may well be one of those which will stand or fall based on what is “hidden” in those “weeds.” My research has indicated to me that there is a troubling paucity of discussion about the defendant’s right to a full and vigorous defense against every single allegation in this indictment and it will be the goal of this discussion to go into greater detail about the numerous constitutional, statutory and other defenses than many pieces have done, some of which seem to assume the truthfulness of all the charges, a very irresponsible conclusion in my opinion.
Nothing said here should be taken as reflecting any view on my part that these charges are not extremely serious — they are. As a ready example, the charges leveled by this same Special Prosecutor, Jack Smith, against former Virginia Governor Bob McDonnell were also very serious and the media had the Governor convicted long before his conviction was reversed by the Supreme Court with a reprimand to Smith for overreaching in his interpretation of the applicable statute.
What follows is an attempt to sketch out a few of the defenses we will probably be hearing a lot more about in the months to come as the case receives more and more attention to the many legal issues raised by this prosecution and the case moves away from the childish “picture book” sensationalism of toilets and chandeliers of the charging document itself. This is a partial list and does not purport to even try to list all possible defenses. It is presented in no particular order, with the exception that I discuss the one argument which could be the linchpin to the entire case and has received surprisingly little attention in the conservative media and commentariat last.
Prosecutorial Misconduct and/or Overreach
As noted above, Jack Smith is no stranger to ruthless prosecution and charges of prosecutorial misconduct, as noted by Mark Levin:
Smith also saw the campaign finance prosecution of former Democratic presidential candidate then-North Carolina Sen. John Edwards declared a mistrial, Levin noted.
The New York Times at the time called it a high-profile example of several “visible efforts” by Smith’s DOJ section, listing other investigations where charges were unsuccessful or not brought including against then-Sen. John Ensign, R-Nev., former House Majority Leader Tom DeLay, R-Texas, the late Rep. Don Young, R-Alaska, and ex-Rep. Allan Mollohan, D-W.V.
“This guy Smith has a record,” Levin said. “Going after the former governor of Virginia – and then he’s rebuked by the Supreme Court 8-0. One of the few cases where they all got together – [he] ruined [McDonnell’s] career.”
“And he does the same to John Edwards in North Carolina – where the jury turned against him – because he’s known for taking laws and pushing the boundaries as far as he can,” Levin went on.
That pattern has clearly shown itself in the initial stages of this prosecution as well, as illustrated by the exchange between the attorney representing the President’s co-defendant, Walt Nauta, and a member of the Special Counsel team, Jay Bratt, as outlined in the following report by a former Assistant US Attorney:
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.
As the author of that report, Will Sharf, is far more qualified than I could ever be in matters of Federal Criminal Law and Procedure, it is appropriate to rely on his opinion that if proven it could undermine the entire case against Trump and Nauta.
Another account of this incident may be found here.
Bearing in mind the reasonable observations of some experts in this field that arguments about selective prosecution and unequal protection of the law probably will not get very far within the four walls of a Federal Courtroom, it is appropriate to take a look at some of the statements which have been made about the very fact that the indictment was brought in the first place, as well as those about the excessively descriptive nature of the indictment, complete with color photographs of boxes in a bathroom. One of the most highly respected lawyers, law professors in the country and a former Deputy Attorney General of the United States, John Yoo, had this to say about this issue:
The Biden administration crossed a constitutional Rubicon this week. For the first time in our history, federal prosecutors have charged a former president. Also for the first time in our history, an executive branch held by the incumbent political party indicted the leading presidential candidate of the other main political party. President Joseph Biden has taken a fateful step about which even Richard Nixon did not dare to dream.
***
Biden administration officials must explain why prosecuting Trump for misuse of classified documents justifies disregarding two centuries of constitutional practice. Presidents remain subject to the law just as anyone else. But our system has long understood that the Justice Department—which assists the president in his duty to “take Care that the Laws be faithfully executed”—can’t prosecute every person for every violation of every federal law.
Prosecutors must exercise discretion to choose the most important cases to bring; the critical factor is whether a prosecution serves the public interest. Even after the Civil War, the federal government didn’t make Confederate President Jefferson Davis stand trial.
Breach of the Attorney-Client Privilege by the Special Counsel
We were taught, over and over again, until it became a fully entrenched mantra never to be violated, that whatever a client told you was never, never, ever to be repeated to anyone, anywhere, under any circumstances, with the sole exception being if the client shared information relating to the commission of a crime. In a world where there are fewer and fewer truly sacrosanct commitments anymore, this Special Counsel got the Chief Judge of the DC District Court to authorize him to “force” one of Trump’s attorneys to testify against him before the Grand Jury. The background is here:
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.
The author goes on to say that it is going to be very tough for the government to prove intent on the part of Trump if Corcoran’s testimony is stricken. Another view on this, and one very much in line with the way I feel about a lawyer violating his sworn duty to protect privileged communications with his client comes from the video of an interview with Robert Barnes, a noted Federal criminal defense lawyer with a notable success record. In that interview (very highly recommended), accessible here, at about 30:15, he makes the point that what Corcoran did here was an absolute disgrace and that what he should have done is refuse to comply with this order and refuse to testify against his own client and invite the Special Counsel to put him in jail for contempt. As Barnes notes, it would be unlikely that, due to the political circumstances, they would force the issue. He also opines that the attorney’s testimony is so critical to the prosecution that if stricken, it could cause the entire case to fail.
Selective Prosecution Implicitly Prohibited by The First Amendment
In the interview linked above, at about 24:20, Robert Barnes argues, quite persuasively in my opinion, that the freedoms we are guaranteed under the First Amendment implicitly mean that one has the right to run for public office and that any attempt by a sitting President to tamper with the right of one of his opponents for re-election (in this case, the clear front runner for the nomination) to run for election should be seen for what it is, i.e., election interference, and should be prohibited as a matter of constitutional law. As he points out, every single former President has national security documents in his possession — right now! — and assuming this is the basis on which this entire prosecution is based, then all former Presidents, going back to Jimmy Carter, should be indicted — right now! As he notes, if this isn’t selective prosecution, there is no such thing. I note my full agreement with this argument, and I would think there might be those reading this who are highly skeptical of this proposition. For those, I urge you to watch that segment of the interview as you may come away with a different view of the matter.
The Burden of Proof Under the Espionage Act and the Presidential Records Act
The interplay between the almost-certainly unconstitutional Espionage Act of 1917 and the Presidential Records Act is quite convoluted and confusing and will play a large role in this prosecution if it gets far enough for those issues to be reached. Those complexities are very ably dissected in a piece by a writer on Substack by the name of Shipwreckedcrew (a former federal prosecutor who currently repesents 13 January 6 defendants), which can be found here. It will be discussed briefly below but first attention should be given to a Wall Street Journal op-ed piece by the lawyer with Judicial Watch who lost the so-called “Clinton Sox case.” Here are some highlights from that piece, slyly entitled Trump’s Boxes and Clinton’s Sock Drawer:
Although the indictment against Donald Trump doesn’t cite the Presidential Records Act, the charges are predicated on the law. The indictment came about only because the government thought Mr. Trump took records that didn’t belong to him, and the government raided his house to find any such records.
This should never have happened. The Presidential Records Act allows the president to decide what records to return and what records to keep at the end of his presidency. And the National Archives and Records Administration can’t do anything about it. I know because I’m the lawyer who lost the “Clinton sock drawer” case.
***
The White House made the audiotapes. Nancy Hernreich, then director of Oval Office operations, set up the meetings between Messrs. Clinton and Branch and was involved in the logistics of the recordings. Did that make them presidential records?
The National Archives and Records Administration was never given the recordings. As Mr. Branch tells it, Mr. Clinton hid them in his sock drawer to keep them away from the public and took them with him when he left office.
Judicial Watch sent a FOIA request to the National Archives and Records Administration (NARA) for the audiotapes and they responded that the tapes were Clinton’s personal records and were not subject to the Presidential Records Act or FOIA. They sued in Federal Court to have the tapes declared to be presidential records and to compel the government to get them. Perhaps I should insert a “hypocrisy warning” before the next sentence: The position of the Justice Department—the one and same Department now prosecuting President Trump over his boxes of records — was that “the president and the president alone decides what is a presidential record and what isn’t. He may take with him whatever records he chooses at the end of his term.”
Judge Amy Berman Jackson agreed:
“Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office,” she held, “it would be difficult for this Court to conclude that Congress intended that he would have less authority to do what he pleases with what he considers to be his personal records.”
It is impossible to square that ruling, and most importantly for purposes of this discussion, that position taken by the Justice Department with the indictment filed by the very same DOJ against another former President. However, we are assured, over and over, most recently by the Special Counsel himself, that the law must be applied equally so that there will be equal justice for all. Make of that what you will. What I think of cannot be printed here as it would be a violation of all standards of civil discourse.
Mr. Bekesha closes his op-ed on a humorous note, but one which highlights the rank hypocrisy of this prosecution and all the platitudes being thrown around about equal justice:
A decade later, the government should never have gone searching for potential presidential records. Nor should it have forcibly taken records from Mr. Trump. The government should lose U.S. v. Trump. If the courts decide otherwise, I want those Clinton tapes.
The author of the other article mentioned above sets out a most interesting analogy which leads into the next, and in my non-Federal-criminal experience, what may well be major, defense argument:
Start with this observation of the charged language — both in the statute as a whole and in the charging language of the indictment — “Whoever having UNAUTHORIZED possession…”
Donald Trump was POTUS until Noon on January 20, 2021, by operation of law that fixes Presidential terms as beginning and ending at that time and on that day following a Presidential Election in November of the previous year.
Now note the following language used by SCO Smith in Paragraph 24 of the Indictment:
“In January 2021” — well, up through Noon on January 20 — as POTUS, Donald Trump had AUTHORIZED possession of every one of those documents, classified or otherwise. This is a tacit — and what will later become an actual admission by SCO Smith that Trump did have authorized possession of some/all the documents at some point in time.
How does the Smith SCO criminalize this “authorized” possession? With a naked little sentence at the end of Paragraph 4 on page 2 that he is going to have to establish to be true by virtue of some magic wand that is waived at precisely Noon on January 20:
Says who? Apparently, Special Counsel Jack Smith.
If a soon to be ex-POTUS is carrying a briefcase containing NDI information away from the White House on January 20 at 11:45 a.m., then enters a vehicle and drives to Andrews Air Force Base for his trip home, is he subject to being pulled from the vehicle, wrestled to the ground and handcuffed by the FBI at 12:05 p.m. when he steps out of the vehicle for “unauthorized possession and retention” of documents containing NDI based merely on the passage of time? The POTUS/Ex-POTUS has done nothing while in the vehicle along the route. He was not a law breaker when he entered the vehicle, but now he’s a potential felon when he steps out of the vehicle?
Yes — this is an exaggeration to the point of absurdity that would never happen. But this is how you test the application of legal principles — do they stand up to scrutiny when they are subjected to argumentum ad absurdum.
As to the line above — “says who?”- remember Lt. Col. Vindman, he of the “Interagency is superior to the Commander in Chief” fame? If the Vindmans and Jack Smiths of the swamp win these battles, it will mean we no longer have a Constitutional Republic, but an autocratic regime with the Deep State in control. Pure and simple.
Fourth Amendment Defense — Multiple Deficiencies With The Search Warrant
By far, the best discussion of this issue is found on the Robert Barnes video (starting at approximately 27) and the following is my good-faith attempt to summarize his points. However, there is no substitute for actually watching this brilliant lawyer expound on the many problems with the search warrant and I highly recommend it for those who want a deeper understanding of this critical aspect of the case. Barnes starts out by referring to the “ludicrous nature” of the search warrant including, among other problems, false statements of fact upon which the warrant was supposedly based. He then notes problems with the execution of the search warrant in which they failed to present it in a timely manner and in which “they seized information that by their own admission was outside the permissible scope of the search warrant.” Critically, he notes, they haven’t identified what classified information was relevant to the indictment because there are no classification-based allegations present in the indictment itself.
Article II of the Constitution of the United States: Plenary Power of the President
The first line of Article II of the Constitution states quite simply:
The executive power shall be vested in a President of the United States of America.
To the everlasting chagrin of many, perhaps most, of the occupants of the District of Columbia, it contains no proviso stating, for example, “except for occasions in which the Interagency shall disagree with the President, in which instances the Interagency shall prevail” or “except for those occasions when Jack Smith and Merrick Garland and Peter Sztrok and Lisa Page and the National Archivist shall determine that the President is not authorized to hold certain documents, in which case …. “
The title of one of the best pieces of writing I have found on this particular aspect of this case reads as follows: Trump did not violate the law because he could not violate the law and those words aptly describe, in my view, the breadth of the President’s authority under Article II.
A few highlights:
Those conservatives rightly outraged at the Trump indictment keep comparing his treatment to that given to Hillary, Biden, and Pence, each of whom admitted to violating national security laws. That’s the wrong argument because Trump is not similarly situated to those lawbreakers. Instead, because he was president when he took possession of the documents, Trump cannot be guilty of the crimes with which he’s charged.
***
… A president’s power whether or not to treat documents as essential to national security supersedes anything either Congress or his own employees in the administrative state can do.
***
The president is the ultimate authority on national security. Congress cannot decide for him what is classified and what isn’t nor can Congress or executive branch employees decide whether he made reasonable national security decisions. Likewise, people who work for agencies such as the National Archives, which started the fuss, cannot claim that laws or regulations override their boss’s plenary constitutional power. Once Trump took those documents from the White House while still president, he effectively and finally determined that they did not implicate national security.
In another piece, the author gets right to the heart of the issue and states his belief that the entire prosecution could fall if it is decided in President Trump’s favor; the article is entitled The Trump Indictment: What Can a Unitary Executive Do?(sub-titled “The question at the heart of the indictment is the extent of executive power.”) and the author makes it crystal clear that no Jack Smith or other underling can decide what President Trump was authorized to take with him when he left the White House:
The outstanding question is whether Trump was unauthorized to possess the national defense documents at issue. If Trump rightfully possessed those documents, if they were his documents, then the whole indictment falls apart. If Trump was not unauthorized to possess anything, and thus was not concealing or misrepresenting anything when he claimed that he had no other documents that needed to be turned over, there is no longer evidence to prove an essential element of (at least most of) the alleged crimes.
By what authority are there rules within the executive branch agencies that can govern the president’s treatment of classified documents? Of course Congress can lawfully pass laws related to national defense and the protection of information that could harm the United States. But Congress cannot use that legislative power to restrict the constitutional powers of the president.
He also has some rather pithy remarks about former Attorney General Barr’s pronouncement from on high that some of the defense-related documents “are in no universe Donald J. Trump’s personal documents”; his reply, as he says, from the perspective of a “humble lawyer who has not a fraction of the experience or legal knowledge of Bill Barr” is that this a “strange statement”:
If Article II vests executive power in the president, then from January 2017 to January 2021, Donald Trump was head of the executive branch. Even documents as sensitive as battle plans or military capability explanations were created by members of the executive branch, subordinates of the president. Those documents were created for the executive. If that is the case, it is hard to understand how there could be “no universe” in which those documents are Trump’s documents.
Robert Barnes, in the video referenced above, makes the same arguments starting with referring to this entire prosecution as bogus (5:30), as it cannot proceed in the face of the President’s plenary power under Article II. He also says, and it is my judgment after studying quite a few materials related to this case and the way it has been handled by the Department of [in]Justice that he is entirely correct, that this is nothing less than an attack on our Constitutional Republic by the Deep State in which they are saying they get to say what is classified and what is not and also whether the President is authorized to keep documents he wants to keep and if your elected President decides to tell you any of these secrets they — the Deep State — will send him to prison. He terms this the most dangerous case in American history. I agree.
The Rubicon Has Been Well and Truly Crossed. Is This the End Game?
230 years of history, tradition, and protocol have been irreparably and savagely breached by the organized crime unit, a/k/a the Department of Justice and its hired street thug and hatchetman, a person with a proven record of ruthlessly pursuing, and destroying, persons, families and reputations. There must be an overwhelmingly powerful reason this bevy of foul forces has been set loose by these wretched people. The members of the Deep State who have orchestrated this hit upon the former President of the United States are simply terrified that Donald John Trump will be elected to another unfettered — key word that — term in which he will do everything in his considerable power to bring them down. They will do anything to stop him. This persecution proves that beyond any reasonable doubt.
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Very excellent. The main pitfall I see is the likelihood that a large number of the American people will simply not be capable of understanding why Trump isn’t guilty, even if/when the case is dismissed or just lost.
And I’m sure my benighted mother is one of them.
Which means they could still win even though they obviously shouldn’t.
kedavis (View Comment): Very excellent. The main pitfall I see is the likelihood that a large number of the American people will simply not be capable of understanding why Trump isn’t guilty, even if/when the case is dismissed or just lost.
I don’t think it is that complicated. Every president takes records for their library. It is easier to explain that Trump is no different than Obama than to explain why his case is different. The American people are not tolerant of process crimes stemming from B.S. charges.
kedavis (View Comment):
Very excellent. The main pitfall I see is the likelihood that a large number of the American people will simply not be capable of understanding why Trump isn’t guilty, even if/when the case is dismissed or just lost.
I don’t think it is that complicated. Every president takes records for their library. It is easier to explain that Trump is no different than Obama than to explain why his case is different. The American people are not tolerant of process crimes stemming from B.S. charges.
Maybe. We’ll see. For sure it’s more likely to turn out correctly in FL than in NY or DC.
It also depends on how well Trump’s lawyers do. From what I hear, it seems like his actual lawyers aren’t as good as some on Ricochet. It might not have been difficult to get the subpoenas/indictment quashed right from the start, based on these principles and existing case law etc. But that might have looked like “getting off on a technicality.” Although many people will no doubt think that Trump “got off on a technicality” regardless, but it probably goes down a little easier if it’s not real early in the process.
Excellent through and through. Except for and extra “e” in the word “classifieed” somewhere in the middle, this is nearly perfect. Worthy of the Ricochet Hall of Fame.
Factoids like “A president’s power whether or not to treat documents as essential to national security supersedes anything either Congress or his own employees in the administrative state can do” and “But Congress cannot use that legislative power to restrict the constitutional powers of the president” and “up through Noon on January 20 — as POTUS, Donald Trump had AUTHORIZED possession of every one of those documents, classified or otherwise … Trump did have authorized possession of some/all the documents at some point in time.” just may upset some who have been very liberal with their condescending cocksurety about much of this “case” elsewhere.
Again, this is a keeper…I suspect I will return to this again and again over the coming months. Thanks for the extra effort.
You have pulled together a lot here, and brilliantly so. Thank you.
Thank you- not to resort to the kind of platitudes none of us care for, but it was really a labor of love as I was seeing a lot of comments indicating all of that [deleted in the interest of civility] in the indictment was proven fact. Thanks again, Jim
Very excellent. The main pitfall I see is the likelihood that a large number of the American people will simply not be capable of understanding why Trump isn’t guilty, even if/when the case is dismissed or just lost.
And I’m sure my benighted mother is one of them.
Which means they could still win even though they obviously shouldn’t.
Then you need to become more charming and convincing. Like, for example:
I told you previously, Jim, that I would be waiting anxiously for your thoughtful response, which you had promised in another post. Well Jim, you have not disappointed! Thank you for taking the time to delve into the details in what could only be expected from an experienced lawyer, such as yourself. Although I have spent the past two days, arguing many of the points that you brought up, my own unlawyerly approach could never accomplish what you have achieved here.
I told you previously, Jim, that I would be waiting anxiously for your thoughtful response, which you had promised in another post. Well Jim, you have not disappointed! Thank you for taking the time to delve into the details in what could only be expected from an experienced lawyer, such as yourself. Although I have spent the past two days, arguing many of the points that you brought up, my own unlawyerly approach could never accomplish what you have achieved here.
I am rendered almost speechless at how to thank you for these kind words and that’s not a comfortable place for a trial lawyer to find himself in! :-) I am so pleased that you found my piece helpful; as I think you know from some of my comments over the past few days, I just felt, rightly or wrongly, that some people were making their minds up based on just the words of a Federal prosecutor, and not a very reliable one at that, and that someone needed to point out that there were any number of other “sides” to the story other than just the charges. I so appreciate your kind words; much appreciated. Jim.
I told you previously, Jim, that I would be waiting anxiously for your thoughtful response, which you had promised in another post. Well Jim, you have not disappointed! Thank you for taking the time to delve into the details in what could only be expected from an experienced lawyer, such as yourself. Although I have spent the past two days, arguing many of the points that you brought up, my own unlawyerly approach could never accomplish what you have achieved here.
I am rendered almost speechless at how to thank you for these kind words and that’s not a comfortable place for a trial lawyer to find himself in! :-) I am so pleased that you found my piece helpful; as I think you know from some of my comments over the past few days, I just felt, rightly or wrongly, that some people were making their minds up based on just the words of a Federal prosecutor, and not a very reliable one at that, and that someone needed to point out that there were any number of other “sides” to the story other than just the charges. I so appreciate your kind words; much appreciated. Jim.
You did all the work, friend, you deserve the praise!
I echo the compliments. I only hope that now your career isn’t destroyed by the organization Alan Dershowitz described that is trying to make sure Trump can’t get a lawyer.
Excellent. Not only have you given a great resource for understanding the unconstitutional and illogical aspects of the case but made clear the actual existential threat to us all of which this case is just an arm as well as why an election of a candidate Trump is more dangerous to that threat than the selection of any other.
Jack Smith appears to be unprincipled scum. On the one hand that may open up a defense for gross misconduct, breach of attorney-client privilege which may exclude some but not all evidence though probably not result in a dismissal. On the other hand, it is reminder of the ruthlessness of the prosecution. Feds get away with a lot. Ask Arthur Anderson or Gen. Flynn. The consolation of belated appellate victories is rarely sufficient redress.
Selective prosecution is an esoteric defense, especially given the scope of prosecutorial discretion and the ability to distinguish cases. I would not count on that.
The notion that privileges held by a sitting President in some way carry over when he becomes a private citizen strikes me as an untenable stretch. The Presidential Records Act applies to document retention while in office and their surrender union leaving. Similarly, I am unpersuaded that any court (at any level) will rule that there is no difference in eligibility to possess classified materials once out of office, especially given that there is zero doubt that all such docs are records owned by the federal government.
What enrages me about this is that there was absolutely no need or reason for Trump to hang onto any of this stuff. This is shaping up to be an own goal of great magnitude.
Trying to fashion a criminal charge out of the PRA would have been silly and charging an ex-president for holding some classified docs is still over the top, BUT once the enemy got a court to order compliance, the refusal to deliver the docs opened up new avenues for the enemy. Then lying about what docs were held, moving or concealing their location and a braindead recorded admissions about the legal posture of their possession can support charges of actual crimes of a kind to which no theory of extended executive privilege will apply.
Yes, indictments are merely accusations, one side of the story. It is the listing of evidence already in hand that troubling. The narrative is that the defendant managed to turn a dispute over records retention into actual crimes. What is the defense for that? Because of a theory of executive privilege and the sheer partisan bias of the prosecution it was OK to make false statements and defy court orders? There will need to be some serious heavy lifting to defend this case.
Your summary brief in the post is as thorough and professional as it gets. Howver, given the difficulties (and career risks) of having Trump as a client, I suspect the quality of his actual defense will not be anywhere as good as what you envision it could be. I also suspect that he will subvert or disobey sound legal advice throughout.
In a nutshell, my take is that defenses essentially based on (a) evidence of the sheer corruption of the federal law enforcement establishment and (b) novel theories about the scope of executive privilege held by an ex-president will likely fail in and of themselves and also in large part because of (c) the astonishingly stupid behavior of the defendant and his willingness to hand opportunistic pets to the enemy.
Old Bathos (View Comment): What enrages me about this is that there was absolutely no need or reason for Trump to hang onto any of this stuff. This is shaping up to be an own goal of great magnitude.
I don’t get what there is to enrage you about Trump not being perfect. What is this obsession that people have with Trump’s “unforced errors”, “self-inflicted wounds”, and that he’s somehow constitutionally, intellectually and emotionally, “unfit” for the presidency. And he has no philosophy or agenda except his own self-promotion. Mind readers, all.
Every charge against Trump has been fallacious; from “Russia, Russia, Russia” to the impeachments, to Vindman, to the “fine people” slander, to Jan 6th, to his tax returns.
And because the “Intelligence Community” sees him as an existential threat to (arguably) world domination, everything that Trump does that is used against him — including taking documents from office — which all presidents have done — somehow makes Trump a rube, a boob, a sleaze-ball, a buffoon.
But smart — intellectually smart and professionally experienced people — see that Trump has been targeted by the “Intelligence Community” for eight years, since before his first election, and they blame every seemingly righteous and successful attempt to jail him as Trump’s fault! This is an acknowledgement of the success of the propaganda war against (perhaps the first) president in US history to be targeted.
This isn’t intellectual. It’s psychological, and emotional, and highly irrational.
You are all victims of Stockholm syndrome. You identify with your captors. And you believe them. And you accept their lies. And you sacrifice the one man on earth who is willing to fight against their corruption and you throw him under the bus, as a ne’er-do-well.
As someone morally your inferior. You all ought to be ashamed. But the hypnotic spell holds you enthralled.
Orange man is BAD. And you will all fight to the last to prove it. But you have nothing other than emotions and mind-reading self-projection. And in the mean time, the “Intelligence Community” continues on, unabated.
Old Bathos (View Comment): What enrages me about this is that there was absolutely no need or reason for Trump to hang onto any of this stuff. This is shaping up to be an own goal of great magnitude.
I don’t get what there is to enrage you about Trump not being perfect. What is this obsession that people have with Trump’s “unforced errors”, “self-inflicted wounds”, and that he’s somehow constitutionally, intellectually and emotionally, “unfit” for the presidency. And he has no philosophy or agenda except his own self-promotion. Mind readers, all.
Every charge against Trump has been fallacious; from “Russia, Russia, Russia” to the impeachments, to Vindman, to the “fine people” slander, to Jan 6th, to his tax returns.
And because the “Intelligence Community” sees him as an existential threat to (arguably) world domination, everything that Trump does that is used against him — including taking documents from office — which all presidents have done — somehow makes Trump a rube, a boob, a sleaze-ball, a buffoon.
But smart — intellectually smart and professionally experienced people — see that Trump has been targeted by the “Intelligence Community” for eight years, since before his first election, and they blame every seemingly righteous and successful attempt to jail him as Trump’s fault! This is an acknowledgement of the success of the propaganda war against (perhaps the first) president in US history to be targeted.
This isn’t intellectual. It’s psychological, and emotional, and highly irrational.
You are all victims of Stockholm syndrome. You identify with your captors. And you believe them. And you accept their lies. And you sacrifice the one man on earth who is willing to fight against their corruption and you throw him under the bus, as a ne’er-do-well.
As someone morally your inferior. You all ought to be ashamed. But the hypnotic spell holds you enthralled.
Orange man is BAD. And you will all fight to the last to prove it. But you have nothing other than emotions and mind-reading self-projection. And in the mean time, the “Intelligence Community” continues on, unabated.
Old Bathos (View Comment): What enrages me about this is that there was absolutely no need or reason for Trump to hang onto any of this stuff. This is shaping up to be an own goal of great magnitude.
I don’t get what there is to enrage you about Trump not being perfect. What is this obsession that people have with Trump’s “unforced errors”, “self-inflicted wounds”, and that he’s somehow constitutionally, intellectually and emotionally, “unfit” for the presidency. And he has no philosophy or agenda except his own self-promotion. Mind readers, all.
Every charge against Trump has been fallacious; from “Russia, Russia, Russia” to the impeachments, to Vindman, to the “fine people” slander, to Jan 6th, to his tax returns.
And because the “Intelligence Community” sees him as an existential threat to (arguably) world domination, everything that Trump does that is used against him — including taking documents from office — which all presidents have done — somehow makes Trump a rube, a boob, a sleaze-ball, a buffoon.
But smart — intellectually smart and professionally experienced people — see that Trump has been targeted by the “Intelligence Community” for eight years, since before his first election, and they blame every seemingly righteous and successful attempt to jail him as Trump’s fault! This is an acknowledgement of the success of the propaganda war against (perhaps the first) president in US history to be targeted.
This isn’t intellectual. It’s psychological, and emotional, and highly irrational.
You are all victims of Stockholm syndrome. You identify with your captors. And you believe them. And you accept their lies. And you sacrifice the one man on earth who is willing to fight against their corruption and you throw him under the bus, as a ne’er-do-well.
As someone morally your inferior. You all ought to be ashamed. But the hypnotic spell holds you enthralled.
Orange man is BAD. And you will all fight to the last to prove it. But you have nothing other than emotions and mind-reading self-projection. And in the mean time, the “Intelligence Community” continues on, unabated.
You are fools.
That about covers it. Olds Bathos is being as polite as he can, it seems to me, in responding to Jim’s specific and precise discussion, but he is doing so by using ad hominem rhetoric. I can’t respond because there is nothing specific to respond to. I hope Jim picks up Old Bathos’ comment and answers.
What a great collection of points – with links to boot. Thanks for this @jimgeorge!
One think I have learned to do over these days is when folks (like you pointed out) “on our side” make comments like the “He’s toast” comment Barr made is for me to just ignore them, but mark down who is doing this for later. Funny how a number of them are the same folks who thought Russia! was so serious as well. Non-lawyers are able to understand these are allegations, and allegations by an institution known to be filled with partisan lying activists – a point you make well.
Time will tell, and odds are that as the next two seasons come and go we will be in a far different place than now.
Y’all do well!
(Y’all is a great example of a single word for second-person plural pronoun in English. Otherwise we use the word, “you,” which can apparently cause confusion, especially when used with “all,” “people,” “guys,” etc. – best way to clarify is to ask what is meant rather than to ponder on what might have been meant – but, y’all I digress!)
What a great collection of points – with links to boot. Thanks for this @ jimgeorge!
One think I have learned to do over these days is when folks (like you pointed out) “on our side” make comments like the “He’s toast” comment Barr made is for me to just ignore them, but mark down who is doing this for later. Funny how a number of them are the same folks who thought Russia! was so serious as well. Non-lawyers are able to understand these are allegations, and allegations by an institution known to be filled with partisan lying activists – a point you make well.
Time will tell, and odds are that as the next two seasons come and go we will be in a far different place than now.
Y’all do well!
(Y’all is a great example of a single word for second-person plural pronoun in English. Otherwise we use the word, “you,” which can apparently cause confusion, especially when used with “all,” “people,” “guys,” etc. – best way to clarify is to ask what is meant rather than to ponder on what might have been meant – but, y’all I digress!)
Thanks for the detailed explanation and translation of the southern English word y’all😁😁
The Russiagate charge was complete and utter crap. They dragged out the fake investigation in hopes of provoking Rump into something they could spin into an obstruction charge. They failed because Trump listened to WH counsel.
The current charge begins as a minor infraction (it was an infraction and spare me the theories about a-President-can-do-anything-because-he-is-President-and-even-afterwards crapola–it it not going fly as a defense) but not some criminal matter, especially given the optics involved. But there was no valid reason to hang onto any of this stuff. That annoys me. The bad guys pushed this issue and Trump let it become a needless fight he was not going to win.
Then, his weird refusal by not returning or acknowledging some docs. Then, his legal team giving false answers about having various docs and then somebody moving their location… FOR WHAT!? Now the bad guys have an entre into a criminal attack. That enrages me. I wanted to defend Trump after the outrageous SWAT raid.
This is not some issue of not being perfect or simply human. This is a prominent, sophisticated American leader, a former President with access to top legal talent making a SERIES of stupid gestures which, from my limited perspective, look a lot like mere petulance.
Yes, I am enraged. We are being sucked into battle on enemy turf. Regardless of the outcome, it will make it harder to bring centrist, independent Americans to vote against a corrupt regime when our current leader seems to have gone out of way to be guilty of something and justify his current persecution by a corrupt regime.
Somebody explain the justification for holding these government docs?
Old Bathos (View Comment): The notion that privileges held by a sitting President in some way carry over when he becomes a private citizen strikes me as an untenable stretch. The Presidential Records Act applies to document retention while in office and their surrender union leaving. Similarly, I am unpersuaded that any court (at any level) will rule that there is no difference in eligibility to possess classified materials once out of office, especially given that there is zero doubt that all such docs are records owned by the federal government.
This seems akin to claiming that once someone leaves some company’s employ, they must return all money paid to them because now that they’re no longer employed that somehow means they stole it.
The Russiagate charge was complete and utter crap. They dragged out the fake investigation in hopes of provoking Rump into something they could spin into an obstruction charge. They failed because Trump listened to WH counsel.
The current charge begins as a minor infraction (it was an infraction and spare me the theories about a-President-can-do-anything-because-he-is-President-and-even-afterwards crapola–it it not going fly as a defense) but not some criminal matter, especially given the optics involved. But there was no valid reason to hang onto any of this stuff. That annoys me. The bad guys pushed this issue and Trump let it become a needless fight he was not going to win.
Then, his weird refusal by not returning or acknowledging some docs. Then, his legal team giving false answers about having various docs and then somebody moving their location… FOR WHAT!? Now the bad guys have an entre into a criminal attack. That enrages me. I wanted to defend Trump after the outrageous SWAT raid.
This is not some issue of not being perfect or simply human. This is a prominent, sophisticated American leader, a former President with access to top legal talent making a SERIES of stupid gestures which, from my limited perspective, look a lot like mere petulance.
Yes, I am enraged. We are being sucked into battle on enemy turf. Regardless of the outcome, it will make it harder to bring centrist, independent Americans to vote against a corrupt regime when our current leader seems to have gone out of way to be guilty of something and justify his current persecution by a corrupt regime.
Somebody explain the justification for holding these government docs?
If I knew what those docs contain, I might be able to answer your question. As it stands, however, all I know is that some bureaucrats from NARA decided they had to have them and the DOJ decided to raid Trump’s house with armed FBI to get them. in my opinion, the DOJ as currently operating has proven itself to be untrustworthy. As such, and without any further information, I have chosen to believe and trust President Trump. You have chosen the opposite. Your position that Trump had no right to those documents is also questionable from all that I know at this point.
A Different Perspective on The Indictment: The Many Defenses Available to President Trump
This post was promoted to the Main Feed by a Ricochet Editor at the recommendation of Ricochet members. Like this post? Want to comment? Join Ricochet’s community of conservatives and be part of the conversation. Join Ricochet for Free.
Very excellent. The main pitfall I see is the likelihood that a large number of the American people will simply not be capable of understanding why Trump isn’t guilty, even if/when the case is dismissed or just lost.
And I’m sure my benighted mother is one of them.
Which means they could still win even though they obviously shouldn’t.
I don’t think it is that complicated. Every president takes records for their library. It is easier to explain that Trump is no different than Obama than to explain why his case is different. The American people are not tolerant of process crimes stemming from B.S. charges.
Maybe. We’ll see. For sure it’s more likely to turn out correctly in FL than in NY or DC.
It also depends on how well Trump’s lawyers do. From what I hear, it seems like his actual lawyers aren’t as good as some on Ricochet. It might not have been difficult to get the subpoenas/indictment quashed right from the start, based on these principles and existing case law etc. But that might have looked like “getting off on a technicality.” Although many people will no doubt think that Trump “got off on a technicality” regardless, but it probably goes down a little easier if it’s not real early in the process.
Excellent through and through. Except for and extra “e” in the word “classifieed” somewhere in the middle, this is nearly perfect. Worthy of the Ricochet Hall of Fame.
Factoids like “A president’s power whether or not to treat documents as essential to national security supersedes anything either Congress or his own employees in the administrative state can do” and “But Congress cannot use that legislative power to restrict the constitutional powers of the president” and “up through Noon on January 20 — as POTUS, Donald Trump had AUTHORIZED possession of every one of those documents, classified or otherwise … Trump did have authorized possession of some/all the documents at some point in time.” just may upset some who have been very liberal with their condescending cocksurety about much of this “case” elsewhere.
Again, this is a keeper…I suspect I will return to this again and again over the coming months. Thanks for the extra effort.
Outstanding post. Thank you.
I should probably put this here, too:
You have pulled together a lot here, and brilliantly so. Thank you.
Thank you- not to resort to the kind of platitudes none of us care for, but it was really a labor of love as I was seeing a lot of comments indicating all of that [deleted in the interest of civility] in the indictment was proven fact. Thanks again, Jim
Thank you very much for your kind words. Jim.
Then you need to become more charming and convincing. Like, for example:
I think @johnyoo and @richardepstein need to read this.
I told you previously, Jim, that I would be waiting anxiously for your thoughtful response, which you had promised in another post. Well Jim, you have not disappointed! Thank you for taking the time to delve into the details in what could only be expected from an experienced lawyer, such as yourself. Although I have spent the past two days, arguing many of the points that you brought up, my own unlawyerly approach could never accomplish what you have achieved here.
I am rendered almost speechless at how to thank you for these kind words and that’s not a comfortable place for a trial lawyer to find himself in! :-) I am so pleased that you found my piece helpful; as I think you know from some of my comments over the past few days, I just felt, rightly or wrongly, that some people were making their minds up based on just the words of a Federal prosecutor, and not a very reliable one at that, and that someone needed to point out that there were any number of other “sides” to the story other than just the charges. I so appreciate your kind words; much appreciated. Jim.
I had also read Greg Jarrett’s analysis https://www.foxnews.com/opinion/trumps-indictment-slam-dunk-case-liberal-media-believes which also indicated that it is not as much of a slam dunk as many think. It also mentioned the Clinton tapes and the Berman opinion. You go into so much more depth. Thank you very much for this excellent analysis.
You did all the work, friend, you deserve the praise!
I’m glad Yer on Our side.
THIS time! :-)
I echo the compliments. I only hope that now your career isn’t destroyed by the organization Alan Dershowitz described that is trying to make sure Trump can’t get a lawyer.
Excellent. Not only have you given a great resource for understanding the unconstitutional and illogical aspects of the case but made clear the actual existential threat to us all of which this case is just an arm as well as why an election of a candidate Trump is more dangerous to that threat than the selection of any other.
Great post!
Jack Smith appears to be unprincipled scum. On the one hand that may open up a defense for gross misconduct, breach of attorney-client privilege which may exclude some but not all evidence though probably not result in a dismissal. On the other hand, it is reminder of the ruthlessness of the prosecution. Feds get away with a lot. Ask Arthur Anderson or Gen. Flynn. The consolation of belated appellate victories is rarely sufficient redress.
Selective prosecution is an esoteric defense, especially given the scope of prosecutorial discretion and the ability to distinguish cases. I would not count on that.
The notion that privileges held by a sitting President in some way carry over when he becomes a private citizen strikes me as an untenable stretch. The Presidential Records Act applies to document retention while in office and their surrender union leaving. Similarly, I am unpersuaded that any court (at any level) will rule that there is no difference in eligibility to possess classified materials once out of office, especially given that there is zero doubt that all such docs are records owned by the federal government.
What enrages me about this is that there was absolutely no need or reason for Trump to hang onto any of this stuff. This is shaping up to be an own goal of great magnitude.
Trying to fashion a criminal charge out of the PRA would have been silly and charging an ex-president for holding some classified docs is still over the top, BUT once the enemy got a court to order compliance, the refusal to deliver the docs opened up new avenues for the enemy. Then lying about what docs were held, moving or concealing their location and a braindead recorded admissions about the legal posture of their possession can support charges of actual crimes of a kind to which no theory of extended executive privilege will apply.
Yes, indictments are merely accusations, one side of the story. It is the listing of evidence already in hand that troubling. The narrative is that the defendant managed to turn a dispute over records retention into actual crimes. What is the defense for that? Because of a theory of executive privilege and the sheer partisan bias of the prosecution it was OK to make false statements and defy court orders? There will need to be some serious heavy lifting to defend this case.
Your summary brief in the post is as thorough and professional as it gets. Howver, given the difficulties (and career risks) of having Trump as a client, I suspect the quality of his actual defense will not be anywhere as good as what you envision it could be. I also suspect that he will subvert or disobey sound legal advice throughout.
In a nutshell, my take is that defenses essentially based on (a) evidence of the sheer corruption of the federal law enforcement establishment and (b) novel theories about the scope of executive privilege held by an ex-president will likely fail in and of themselves and also in large part because of (c) the astonishingly stupid behavior of the defendant and his willingness to hand opportunistic pets to the enemy.
I don’t get what there is to enrage you about Trump not being perfect. What is this obsession that people have with Trump’s “unforced errors”, “self-inflicted wounds”, and that he’s somehow constitutionally, intellectually and emotionally, “unfit” for the presidency. And he has no philosophy or agenda except his own self-promotion. Mind readers, all.
Every charge against Trump has been fallacious; from “Russia, Russia, Russia” to the impeachments, to Vindman, to the “fine people” slander, to Jan 6th, to his tax returns.
And because the “Intelligence Community” sees him as an existential threat to (arguably) world domination, everything that Trump does that is used against him — including taking documents from office — which all presidents have done — somehow makes Trump a rube, a boob, a sleaze-ball, a buffoon.
But smart — intellectually smart and professionally experienced people — see that Trump has been targeted by the “Intelligence Community” for eight years, since before his first election, and they blame every seemingly righteous and successful attempt to jail him as Trump’s fault! This is an acknowledgement of the success of the propaganda war against (perhaps the first) president in US history to be targeted.
This isn’t intellectual. It’s psychological, and emotional, and highly irrational.
You are all victims of Stockholm syndrome. You identify with your captors. And you believe them. And you accept their lies. And you sacrifice the one man on earth who is willing to fight against their corruption and you throw him under the bus, as a ne’er-do-well.
As someone morally your inferior. You all ought to be ashamed. But the hypnotic spell holds you enthralled.
Orange man is BAD. And you will all fight to the last to prove it. But you have nothing other than emotions and mind-reading self-projection. And in the mean time, the “Intelligence Community” continues on, unabated.
You are fools.
Love this comment .
The most interesting word in the above sentence is “all.”
That about covers it. Olds Bathos is being as polite as he can, it seems to me, in responding to Jim’s specific and precise discussion, but he is doing so by using ad hominem rhetoric. I can’t respond because there is nothing specific to respond to. I hope Jim picks up Old Bathos’ comment and answers.
What a great collection of points – with links to boot. Thanks for this @jimgeorge!
One think I have learned to do over these days is when folks (like you pointed out) “on our side” make comments like the “He’s toast” comment Barr made is for me to just ignore them, but mark down who is doing this for later. Funny how a number of them are the same folks who thought Russia! was so serious as well. Non-lawyers are able to understand these are allegations, and allegations by an institution known to be filled with partisan lying activists – a point you make well.
Time will tell, and odds are that as the next two seasons come and go we will be in a far different place than now.
Y’all do well!
(Y’all is a great example of a single word for second-person plural pronoun in English. Otherwise we use the word, “you,” which can apparently cause confusion, especially when used with “all,” “people,” “guys,” etc. – best way to clarify is to ask what is meant rather than to ponder on what might have been meant – but, y’all I digress!)
Thanks for the detailed explanation and translation of the southern English word y’all😁😁
The Russiagate charge was complete and utter crap. They dragged out the fake investigation in hopes of provoking Rump into something they could spin into an obstruction charge. They failed because Trump listened to WH counsel.
The current charge begins as a minor infraction (it was an infraction and spare me the theories about a-President-can-do-anything-because-he-is-President-and-even-afterwards crapola–it it not going fly as a defense) but not some criminal matter, especially given the optics involved. But there was no valid reason to hang onto any of this stuff. That annoys me. The bad guys pushed this issue and Trump let it become a needless fight he was not going to win.
Then, his weird refusal by not returning or acknowledging some docs. Then, his legal team giving false answers about having various docs and then somebody moving their location… FOR WHAT!? Now the bad guys have an entre into a criminal attack. That enrages me. I wanted to defend Trump after the outrageous SWAT raid.
This is not some issue of not being perfect or simply human. This is a prominent, sophisticated American leader, a former President with access to top legal talent making a SERIES of stupid gestures which, from my limited perspective, look a lot like mere petulance.
Yes, I am enraged. We are being sucked into battle on enemy turf. Regardless of the outcome, it will make it harder to bring centrist, independent Americans to vote against a corrupt regime when our current leader seems to have gone out of way to be guilty of something and justify his current persecution by a corrupt regime.
Somebody explain the justification for holding these government docs?
This seems akin to claiming that once someone leaves some company’s employ, they must return all money paid to them because now that they’re no longer employed that somehow means they stole it.
If I knew what those docs contain, I might be able to answer your question. As it stands, however, all I know is that some bureaucrats from NARA decided they had to have them and the DOJ decided to raid Trump’s house with armed FBI to get them. in my opinion, the DOJ as currently operating has proven itself to be untrustworthy. As such, and without any further information, I have chosen to believe and trust President Trump. You have chosen the opposite. Your position that Trump had no right to those documents is also questionable from all that I know at this point.
Nope. (With all due respect, not going to give an inch at this juncture. Anyone demanding that I do can pound sand.)