This is a concise article at The Federalist, written by Will Scharf who is a former federal prosecutor and currently a Republican candidate for Missouri Attorney General.
I'll give you the 6 headings and some excerpts:
1. Interplay Between the Espionage Act and the Presidential Records Act... Section 793(e) [of the Espionage Act] 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.... [But t]he 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.... [and so] 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.... 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....
2. Classification and National Defense Information
Just because something is classified... 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.”...
3. Walt Nauta and DOJ Misconduct
... 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.”... Woodward... is a legal heavyweight, and he is leveling an extremely serious allegation of misconduct against a senior official at DOJ....
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....
[T]he 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.... Reading the conversations in the indictment, they sound a lot more like honest attorney-client communications than they do crime [or] fraud to me, even with all ellipses and modifications made by the special counsel’s team....
5. Timing: Why 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....
If I were Trump’s lawyers, I would consider moving to continue further proceedings until after November 2024....
6. Jack Smith: Why Him?
... The single case Jack Smith is most publicly associated with was the prosecution of Virginia Gov. Bob McDonnell. In that case... [a] unanimous Supreme Court smacked Smith down for an overzealous, legally defective prosecution of a Republican politician....
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.... If this is not a political prosecution, if Merrick Garland wasn’t just trying to “get Trump,” then why was Jack Smith the pick?....
Posts
86 comments:
The fox knows many tricks and the hedgehog only one, but that is the best of all.
The prosecution only needs conviction on any one of the many, many counts.
Trump has to defend against them all.
Juries might convict on at least one, or more, just because some make more sense than others.
Point 5, Timing, seems way off. The DOJ guidance relates to actions taken in the months before an election. The Presdidential election is more than one year off. If the DOJ was really precluded from filing against Trump now, that would in effect grant immunity from immediate prosecution to anyone running for President who announces a year or more before the election. That is not the law, nor could it, as a matter of common sense, be the law.
Since Point 5 is so completely off base, not to say so seriously flawed, there is good reason to be sceptical about the rest.
As to Point 1, on what planet are the documents, as described in the indictment, personal to Trump?
So it is even more of a corrupt act by our DOJ than the russia collusion was.
I'm not persuaded - except, I have a real problem with the Judge allowing the seizing of contemporaneous attorney notes. These are clearly privileged materials - and attorney work product. It's the proverbial "fruit of the poisonous tree" Nardone v. United States, 308 U.S. 338 (1939), Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). I understand the crime-fraud exception - but I don't see that applying here, as Mr. Trump already possessed the documents (the counter argument I suppose is that he was continuing to resist the Grand Jury subpoena, but we don't know because the judge's decision is sealed.)
There's part of me that wonders if this is a poisoned pill approach to the case - it will allow for an initial conviction, but will also allow Trump to go free in the long run when the 11th Circuit overturns the conviction.
Yes, BUT..
Couldn't the DOJ just refuse to name a date (or even a year) that all this took place?
Wouldn't that, BY DEFINITION, mean that Trump was GUILTY ???
asking for a friend, who is just trying to keep up
Everybody knows this is a political prosecution. Democrats and some GOPe types think it's a great idea. Most of the country knows it is nothing but political. The Democrats think this will poison Trump's campaign. They thought so in 2016. In 2020 Trump did not do enough to stop vote fraud. The 2024 election will be about vote fraud. On issues, Trump should win.
Thanks, Ann
If "the case" against Trump was ever going to a trial this might matter.
Alas ... it won't. Because Trump isn't getting any trial. To give Trump a trial is to create the possibility he might win - and they're simply NOT going to do that.
They will NEVER create an opportunity for Trump to "win." So Trump isn't getting a trial. If there's no trial, there is no "case."
Scharf makes good points. A couple relating to the behavior of the prosecutors, while shocking, may not contribute to the defense unless Judge Cannon remains on the case. Democrats, including their judges, have a high tolerance for corruption, since without corruption there would be no Democrats.
Items 1&2 look promising.
I believe that the Left is trying to goad the Right into some precipitous actions.
Perfect weather for some false flag flying, I think.
The Tree of Liberty is looking rather parched these days. I suspect a thunderstorm is approaching. That's good news for the tree and tree-huggers everywhere, but you better weatherproof your house.
"It's a hard rain gonna fall" - Bob Dylan
Available through the Althouse portal
- Goetz von Berlichingen
Apologies if this double-posted
#1 does not pass the laugh test.
#2 I don't understand the point from the summary.
#3 Sounds like an argument for Nauta, not Trump. Might support motion to sever the 2 indictments.
#4 Subject of ruling from DC judge. Law of the case. Tough to get reconsideration.
#5 timing an awkward argument to this judge. She allowed Trump's lawyers to delay the investigation by granting motion for special master and stay on investigation until reversed by court of appeals.
#6 more political bs.
I don't think this legal HIT job is gonna work.
I'll vote for Trump in prison, and then I'm gonna work on my proficiency at the rifle range.
Interesting. We all know this is a political prosecution.
I just don't believe "laws" matter anymore to leftists and liberals. It's all just make believe at this point.
These are not flaws.
1. Legal question
2. Legal question (and since this lawyer doesn't know what's in the documents any more than we do, not sure his analysis is useful)
3. Very unethical if true. Could be a flaw! (Does it affect the case? Does it have to? Question to judges/lawyers.)
4. Legal question (but has it been addressed already?)
5. Punditry
6. Ad hominem
Tell me again that the left aren't corrupt evil people who deserve our ire. They keep poking and poking the angry bear, and they are NOT going to like what they are fomenting...
Dershowitz: Radical Leftist Group Is Preventing Trump from Obtaining Top-Tier Lawyers Through Threats and Harrassment
https://www.thegatewaypundit.com/2023/06/2-2/
This is an excellent analysis, which is why my post of yesterday on a different thread alludes to the real game.
The prosecutors never intend to bring this case to trial. They have to release the documents (at least to the jury). If the documents aren't sufficiently alarming you will have a "where's the beef" issue with the jury.
They want to further indict Trump on a 1512 charge of intimidating witnesses, specifically charges with respect with Walt Nauta. That's why they left out any talk about forbidding witness conversations in their bond documentation. The judge brought it up sua sponte, and now the prosecutors have to come up with a witness list.
I expect there's a wiretap on Trump and Nauta and probably their attorneys. It's not like they haven't already violated attorney client privilege in the case.
Orbán Viktor
@PM_ViktorOrban
The pro-war camp are attacking
@realDonaldTrump
with full force. That’s what you get nowadays if you’re on the side of peace. Keep on fighting, Mr. President! The world needs you, the world needs #peace.
https://twitter.com/i/status/1669646389326880769
The entire prosecution is LawFare based. Benjamin Wittes, it’s head, laid much of it out publicly. In particular, it has his trademarked misreading of statutes to read Intent and Materially requirements out of these statutes. I think that it is significant that there is. §1001 Obstruction of Justice charge included. After an article in LawFare by Wittes about misusing this statute, by ignoring Intent and Materiality, his palls at the DOJ, notably Andrew Weissman, started using this statute in perjury traps. Remember the prosecution of LTG Flynn? Yep, in the end, it revolved around their failure to provide any evidence of Materiality. They couldn’t, of course, since his statements, which might have been false (but probably weren’t), weren’t material. Couldn’t have been, because the FBI had the transcripts of his call with the Russian Ambassador. Flynn didn’t. They could have bypassed that problem by getting him to stipulate to materiality. They didn’t, likely, I think, because that might have given the game away. By the end of the Mueller investigation, that was all that they were doing - running bogus §1001 perjury traps, and finally got shut down by AG Barr for that reason.
Same problem here with both the Espionage Act and Obstruction charges. No intent and no materiality. At least not with a Miami jury. Might work, with a jury in NYC, that could find both out of thin air.
Just 6? On the flip side, reasonable doubt only needs 1.
They’re not trying to get Trump, they’re trying to ensure he’s the nominee and make him unelectable at the same time.
Good luck with defense #1 under the definition of personal records in the Presidential Records Act:
The term “personal records” means all documentary materials, or any reasonably segregable portion therof,[2] of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes—
(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;
(B) materials relating to private political associations, and having no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; and
(C) materials relating exclusively to the President’s own election to the office of the Presidency; and materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.
Thanks for post this. Its great to get some good legal analyis. It makes a good case.
But there's even more. Like this 2 impeachments, I'm shocked at no one on the Right ever boils the charges down and tells us EXACTLY what Trump did that was so wrong, and EXACTLY what harm it did to the USA. Or not.
Its not good enough to charge a POTUS with breaking some law. Jaywalking is breaking the law. We need to know in CLEAR SIMPLE language, how TRump's breaking the law CAUSED HARM.
Or not.
And how the people charging him have PROVED intent. Or not.
One problem with the Center-right is they love being detail orientated. The left makes some charge, no matter how absurd, and the Center-Right immediately charges into the details. The impression left is the charges aren't absurd, but somehow legitimate. And made in good faith. Are they? The two impeachments were NOT. The Bragg indictement was NOT. Is this one?
7. Biden DOJ
It's the Biden's Department of Justice. Everything they do is to advance the left regardless of merit. (See, e.g., failure to protect Republican Justices, "terrorist" parents protecting their children, avoidance of all Biden scandals (Hunter and Joe).)
BTW, Andy "Mueller and Comey are honorable men" McCarthy has already found Trump guilty. Thank goodness these 6 reasons post shows him wrong.
1. Interplay Between the Espionage Act and the Presidential Records Act.
A: As President Trump could declassify anything he wanted. Simply by pointing his finger at it and saying "I declassify every single document in that box" would legally declassify everything in that box, or stack of boxes, regardless of "markings"
B: Given the large number of classified documents in the hands of Obama, Clinton, and Biden, and given the strong mens reality component of the law, there's no way you can prove that Trump "knew" what he was doing was illegal
4. Attorney-Client Privilege
This was the most egregious part. Asking your attorney what you can legally do to block the gov't from getting what they want is not a crime. The fact that they used Trump doing that to pierce attorney-client confidentiality is insane, every single "judge" involved in letting that happy deserves to be removed from office, every single lawyer who had anything to do with pushing that should be disbarred
5. Timing: Why Now?
He's entirely wrong about pushing this case past teh Nov election. That's what the Dems want. They want to accuse Trump of being a criminal, but not have to actually prove it
6. Jack Smith: Why Him?
Because no non-garbage lawyer would be involved in this case.
As someone who spent time in the Philippines and in Columbia, this how it is done to remove troublesome populists. Keep an eye and ear out for the media to intensify the demonization of Trump and anyone one who may support him. And don’t forget Nancy Pelosi’s statement that trump had an opportunity to prove his innocence rather than presume him to be innocent. The government has already tipped their hand in that regard.
Serious Question..
Is there a person on earth? That DOESN'T realize that the entire Biden Family is Corrupt?
Anyone? Any one, at all??? Someone what to go on the record defending the Biden's ?
Inga?
Mark?
gadfly?
JimXXXX (what ever your number is?)
heck, Chuck??
Anyone? Any one? At all??
These points seem worth considering. I wonder if Smith will answer them. The whole business makes my head hurt, starting with the conceptual mess of how one is supposed to handle information that is/not National Defense Information as opposed to a presidential record or a personal record, overlaid with the power of the President to classify or declassify whatever he chose and the subjectivity of "intent" and how it is to be proven if the prosecution is to prevail. Of course, in front of a DC jury, getting a guilty verdict shouldn't be too hard. But the case will have enormous precedential power --the next President will refuse to receive any information on any subject unless he or she is given a "safe harbor" interpretation will bar future prosecution. "Mother may I?" is quite a position for the "most powerful person on the planet."
Sigh.
A "serious flaw" of the case is that the prosecution will have to demonstrate that some of the classified documents are related to national security in order for them to convict Trump of illegally retaining national security documents. Damn, I hope Smith has thought of that! That's some incisive legal commentary.
Does the attorney client privilege apply to communications between a client and his lawyer where the client is using the lawyer as an unwitting tool of crime? I think not. I don’t see how the purposes of the attorney client privilege are served by protecting communications in that case. If all that happened here was that the lawyer gave Trump advice, and Trump ignored it, that would be protected. But here, Trump hid documents so that the attorney wouldn’t find them and would therefore give a false affidavit to the grand jury stating that Trump didn’t have any responsive documents. Therefore the communications that were part of this scheme should not be protected.
6. Jack Smith: Why Him?
... The single case Jack Smith is most publicly associated with was the prosecution of Virginia Gov. Bob McDonnell. In that case... [a] unanimous Supreme Court smacked Smith down for an overzealous, legally defective prosecution of a Republican politician....
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.... If this is not a political prosecution, if Merrick Garland wasn’t just trying to “get Trump,” then why was Jack Smith the pick?....
As with all defense of Trump's actions in this case, Scharf requires that you ignore anything the former President actually said or did and have a very strange view of what the law actually says. At some point, people will get tired of being hung out to dry like this.
I await the lefts measured response.
Just to give an example of where this article goes badly wrong. On Point 2, he asks if Trump could have known that 2019 top secret information was still important in 2022. Um, yes. He said as much on the tapes. And classification grades do not come with expiration dates. If I revealed 50-year-old top secret info, I'd still be in deep trouble.
(Should also note this guy is running for Missouri AG and is trying to round up the MAGA vote. So he's not exactly objective.)
After reading through this it's nice to know Mead makes an occasional post. (heh!)
Would be Dictator ordered his Department of Injustice to kneecap his political opponent with made up crimes. It’s as old as the English Kings who loved taking an opponent’s lands and using the Star Chamber procedures to appear it was legal.
Well, that was unimpressive. Not a lot of meat on those bones. BTW, as for Presidential records, they are records that the President creates. Agency records (like a memo from DoD) are specifically excluded from the list of items a President can claim as personal.
Uh oh. The closer DJT gets to power the more likely the CIA will be forced take him out. Real elections of pro American populists are not allowed anymore. But then the Trump pick for VP is going to become as as crucial as FDRs pick of an unknown Missouri Senator named Truman.
A good article. Speaks from a practical and real legal perspective about why this case is such a load of crap. Doesn't play the Andy McCarthy game of "maybe they have something here, lets see how this plays out."
The elephant in the room is that the Garland raid was way, way out of bounds and none of this is or should be treated as in any way legitimate, either legally or politically.
Masterful analysis.
Breaching the attorney-client privilege based on the crime-fraud exception is the top weakness of the government’s case. I think the trial judge has to rule on its admissibility. The prior ruling applied just to compelling grand jury testimony.
I very much liked how the author broke down the elements of the case. The lawyer clowns on TV never do that.
And WTF with Bill Barr?
Also--If the documents are really such that their exposure is a grave threat to the republic, why does the legally and historically unprecedented action of prosecuting the former President for an alleged technical violation of the Espionage Act take precedence over the security of the documents and information itself?
In order for Trump to defend himself his attorneys are going to have to argue that the substance of the documents is insufficient to justify the prosecutors' claims. How does he get a fair trial without bringing forth the substance of the documents? Isn't there a danger that, even if the court imposes a gag order, the defendant puts it out there anyway, in the court of public opinion? Isn't the DOJ creating a situation in which exposure of (allegedly) harmful information to be exposed?
“why was Jack Smith the pick?....”
Garland probably asked the guy least likely to turn him down. Any prospective prosecutor putting up against a possible president has to know that if they try to take Trump down, the case better be tighter than Alvin the science sub used to study the deep oceans. After reading this post the case is even thinner than I had imagined. To jail a former president you need more substantive wrongdoing than an apparent clerical conflict. It’s apparent even to me that up until Trump, former presidents have been granted the privilege of ascertaining for themselves what was personal papers. And even if let’s say Trump tried to keep papers that could not be deemed personal in any way, does that rises to the level of an unprecedented prosecution of a former president?
I believe these questions may have crossed the minds of career prosecutors at the DOJ. And that’s why Garland ended up with a guy who doesn’t even live here.
With regard to the first point, Ed Whelan had a good (brief) rebuttal on Twitter a couple of days ago. It begins:
In today’s WSJ, Judicial Watch’s Michael Bekesha claims that Presidential Records Act gives an outgoing president complete authority to “decide what records to return and what records to keep at the end of his presidency.” Bizarro World account of PRA.
"Will no one rid me of this turbulent priest?"
-- Biden's cue cards
As President Trump could declassify anything he wanted. Simply by pointing his finger at it and saying "I declassify every single document in that box" would legally declassify everything in that box, or stack of boxes, regardless of "markings"
Well you are just full of shit. Even if this nonsense were true, they have Trump on tape telling someone that he has classified documents in his possession that he did not declassify, and he admitted that he could not declassify them any more.
7. The Navin Johnson Defense:
Well I'm gonna go then. And I don't need any of this. I don't need this stuff, and I don't need you. I don't need anything except this.
[picks up a Presidential ashtray]
And that's it and that's the only thing I need, is this. I don't need this or this. Just this ashtray. And this paddle game, the ashtray and the paddle game and that's all I need. And this remote control. The ashtray, the paddle game, and the remote control, and that's all I need. And these matches. The ashtray, and these matches, and the remote control and the paddle ball. And this plan to attack Iran. The ashtray, this paddle game and the remote control and the plan to attack Iran and that's all I need. And that's all I need too. I don't need one other thing, not one - I need this. The paddle game, and the chair, and the remote control, and the matches, for sure. And this. And that's all I need. The ashtray, the remote control, the paddle game, this magazine and the chair.
[walking outside]
And I don't need one other thing, except Melania.
[Melania growls]
I don't need Melania.
Breaching the attorney-client privilege based on the crime-fraud exception is the top weakness of the government’s case.
Really!? Apparently, there is testimony that Trump asked his lawyers to destroy or conceal evidence of a crime, but he even lauded the person that destroyed the the Hillary Clinton emails (which of course he wanted to "lock her up" for)
JACK SMITH = Homey don't play!
Ironman triathlete
He has completed more than 100 triathlons and at least nine Ironman competitions - including in Germany, Brazil and Canada.
He has a daughter with wife Katy Chevigny, an award-winning documentary filmmaker.
Mr. Smith attended the State University of New York at Oneonta before graduating from Harvard Law School.
He started his career as a prosecutor in 1994 at the Manhattan District Attorney’s Office under Robert Morgenthau, who was best known for prosecuting mob bosses. A few years later he moved to the Brooklyn District Attorney’s Office, where he worked on a high-profile police brutality case.
From 2008 to 2010 he supervised war crimes investigations in The Hague.
He returned to the DOJ to head up its Public Integrity Section until 2015, working complex cases against public officials.
Under his leadership the department brought a corruption case against John Edwards, a Democratic former senator and vice presidential candidate and Bob McDonnell, at the time Virginia’s Republican governor.
He oversaw another investigation into a former Republican congressman but decided against bringing charges.
While he has received distinguished service awards, having spent the past four years overseas, Mr Smith has a relatively low profile at home and has been shielded from the hyper partisan legal battles of the Trump and Biden administrations.
JACK SMITH KNOWS HOW TO TRAIN FOR THE RUN, NO SPINELESS WEAK PSCHOPHANT HERE. SEE JACK RUN,RUN RUN. They have given the previous president more leeway than any other person would ever get shutting down the right wing waiting to pounce on interfering with trump taking office by eliminating charges that would signal that. Too smart FOR THE DRUMPF talk about different treatment, I'll say so, guy got espionage charges and they let him keep his plane, his passport, no mug shot or ankle bracelet, free to go (for now) c'mon man!!!
Can someone explain in simple language why DoJ prosecutors were able to pierce Lawyer-Client privilage to destroy Trump - when it almost never is.Even for murderers and child rapists?
In fact, haven't the worst of criminals gone free when the Attorney-Client Privilage was wrongly peirced and overturning of a conviction?
And how did Trump try to use his lawyer to commit a crime? Did he get his attorney to smuggle secret information to the Chicoms? From what I can tell, all he did was dispute whether the National Archives had the right to certain documents or whether he could keep them.
Again, The center-right journalists need to CLEARY explain what Trump did wrong and How it harmed the USA. Or not. And why its CLEAR under the law he was guilty. And that he had INTENT. Instead, all we get is Andy McCarthy telling us Trump is guilty and McCarthy claiming Smith and Garland are "Honorable Men".
This smells - just like the 2 phony impeachments. Actually it stinks more. Because Trump is INNOCENT until proven guilty beyond a REASONABLE DOUBT. But i guess, since its TRump - andy mccarthy doesn't care.
In terms of the author's background, not too experienced. 12 years out of law school. Clerked for 2 court of appeals judges for a couple of years. Associate at major law firm's St Louis office a year and a half. Federal prosecutor same city 2 and a half years. The other half the time consulting and political work.
Dave Begley: "And WTF with Bill Barr?"
Its perfectly obvious.
Bill Barr, like an Andy McCarthy and others, want Trump gone. At all costs, even if it means giving support to the purposeful mischaracterizations and lies pushed by the dems/GOPe-ers.
So they are playing along with the dems to help get rid of Trump thinking once Trump is gone then there can be a reset and all The Reasonable And Respectable People can go back to the way its always been.
Readering said...
#1 does not pass the laugh test.
If true, Readering would point out what's wrong with it.
but he can't, because #1 is entirely correct
#2 I don't understand the point from the summary.
The only honest thing Readering has ever wrote
#4 Subject of ruling from DC judge. Law of the case. Tough to get reconsideration.
That's going to get appealed all teh way to SCOTUS. And eventually it will get torched.
Because the whole point of attorney client privilege is you can ask your attorney "how do I do this thing legally, even if it pisses off the gov't"
#6 more political bs.
The police BS is the charges
Douglas B. Levene said...
Does the attorney client privilege apply to communications between a client and his lawyer where the client is using the lawyer as an unwitting tool of crime?
Asking your lawyer "what can I legally do here" is not a crime.
I think not
that's the only honest part you wrote
But here, Trump hid documents so that the attorney wouldn’t find them and would therefore give a false affidavit to the grand jury stating that Trump didn’t have any responsive documents.
And your support for this deranged bullshit claim is?
With links
On Point 2, he asks if Trump could have known that 2019 top secret information was still important in 2022. Um, yes. He said as much on the tapes.
"He said as much on the tapes" is just another way of saying "he didn't say so on the tapes."
Don't matter how flawed it is.. they will just get a woke jury that hates Trump and convict him anyway.
Don't matter if later on appeal it is thrown out.. they will still have that felony conviction to stop Trump with.
Leftbank
You are not paying attention.
Case law states the President has unreviewable power to decide which is which. Separation of powers prohibits the Legislative Branch from telling the Executive Branch how to handle paperwork. No judge has ever ordered a past President to give back items he deemed personal.
The prosecution only needs conviction on any one of the many, many counts.
They don't really want a conviction on the documents case. They don't want a trial where they have to show the documents. That brings up too many problems. What if the documents don't match up to what the media is portraying them as? They just want him to not run for office.
Best solution is for some "Trump judge" to toss the case on a technicality. Then they will say they would have won at trial. Or to get him on a witness tampering charge. Then they don't have to prove their original case.
Trump isn't going to serve any jail time, even if he was convicted of something. Biden will commute his sentence. Trying to imprison a former President, even one as controversial as Trump presents a lot of political problems.
But here, Trump hid documents so that the attorney wouldn’t find them and would therefore give a false affidavit to the grand jury stating that Trump didn’t have any responsive documents.
And your support for this deranged bullshit claim is?
You just laid out, Trump's lawyer did not aid in the crime. The lawyer did not hide the boxes. The client lied to the lawyer....like that doesn't happen in every single criminal case.
But my comment does not cede the point than no crime has been committed, and Trump NEVER considered you was anywhere near criminal territoriality. The President has power to declassify. The President is the final say in what is personal, and what is PRA. His lawyer held the same legal opinion. So the DoJ had no right to Trumps papers.
Not everyone who is sick of Trump wants him gone.
*they are all in on it^
So tired.
The left... inspired by Rachel Maddow
Under the PRA, "’personal records’ means all documentary materials of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.”
If Trump’s best defense is that plans for an invasion of Iran drafted by DOD is a personal record, I suggest he hire new lawyers.
The Trump indictments under the Espionage Act deal with possessing defense-related classified documents rated at the highest levels of security as the 49-page indictment describes. All this other silliness from MAGA sources like TNR is nonsensical.
When the testimony is obtained from Trump attorneys 1,2, and 3 and former underlings numbered accordingly about what Trump knew about national security, he will be convicted. He believed he had protection under the Presidential Records Act (which came about to keep Nixon from walking off with the WH tapes) because an English Major told him so.
And according to messages between Melania and Walt, he actually requested certain boxes to find the hoarded classified documents he needed to carry to Bedminster and elsewhere where he could and did display and discuss the actual papers to folks who had improper or no clearance.
“Does the attorney client privilege apply to communications between a client and his lawyer where the client is using the lawyer as an unwitting tool of crime? I think not. I don’t see how the purposes of the attorney client privilege are served by protecting communications in that case. If all that happened here was that the lawyer gave Trump advice, and Trump ignored it, that would be protected. But here, Trump hid documents so that the attorney wouldn’t find them and would therefore give a false affidavit to the grand jury stating that Trump didn’t have any responsive documents. Therefore the communications that were part of this scheme should not be protected.”
But did he hide documents? I find it unlikely. If they had hidden the documents, they likely wouldn’t have found them. Most, if not all, of the documents marked as classified, that the FBI will admit to finding, were apparently found filed in boxes that probably hadn’t been opened since Trump left office. They were apparently mixed in with contemporaneous related documents from events and phone calls he was involved in at his desk in the White House. Staff would sweep everything into a box when he was done, giving him a clean desk for the next event or call. And then the FBI opened those boxes years later. That’s the key - that the documents marked as classified were apparently found mixed with related documents. Not hidden. Just needles in haystacks. (See letter from Trump’s attorneys to Congressional oversight chairs and ranking embers).
On issues, Trump should win.
On issues, DeSantis should beat Trump by 13 months from now, and then Biden four months later. But as of right now this election looks as though it will be about the DOJ versus the Dion.
Field Marshall Freder: "Really!? Apparently, there is testimony that Trump asked his lawyers to destroy or conceal evidence of a crime, but he even lauded the person that destroyed the the Hillary Clinton emails (which of course he wanted to "lock her up" for)"
Oooh. More "apparently's" just sitting there just like all the other lie-filled hoaxes!
Not to worry.
That's good enough for an army of Levene's to drop right in behind you in uniform "muh principles" "muh precious norms" "respectable" "just callin' balls and strikes here (wink wink)" lockstep.
tomneyesque: "He said as much on the tapes" is just another way of saying "he didn't say so on the tapes."
Precisely.
Its the Raffensberger and Ukraine phone call hoaxes Part One Million with these buffoons.
“why was Jack Smith the pick?....”
“Garland probably asked the guy least likely to turn him down.”
Smith is just a figurehead. The mastermind, the force hind the scheme, is Jeffrey Bratt, branch chief of the DOJ’s Counterintelligence and Export Branch, and now Assistant Special Counsel. Yes, branch chief of the sister organization to the FBI’s Counterintelligence Division. The two organizations worked together on Crossfire Hurricane, the four fraudulently acquired FISA warrants on Carter Page, etc. A binder of incriminating information on both organizations was formally ordered declassified Trump’s last full day in office.
- Bratt was the one calling the shots with NARA requesting documents fro Trump. The FJB WH had ordered NARA to cooperate with the FBI.
- Bratt was behind the subpoena for the allegedly missing NARA documents. It is likely that the documents that he knew Trump had that were still marked classified were the ones Trump had ordered declassified - because as of the MAL raid, at least, they still hadn’t been declassified (known from FOIA requests).
- Bratt is the DOJ official who refused the Trump lawyers requests for extensions of time and rolling discovery to comply with the subpoenas.
- He then used their failure to provide all of the documents that the DOJ had requested for the search warrant for the MAL raid. Trump’s attorneys were refused permission to oversee execution of the search warrant, so no one outside the search team knows what they did - but we do know that they staged the photos of “classified documents” supposedly found there. FBI CD agents were on hand to review and documents found that were marked classified. We also know that the MAL raid was run out of FBI/DOJ HQ in DC, instead of out of the local FBI field office, which is protocol (according to whistleblower testimony).
- Now as Asst Special Counsel, Bratt signed the Indictment.
Smith appears to be the frontman here, for Bratt, just as the hapless Mueller was the frontman for Andrew Weismann.
Once again, Trump is testing America’s tolerance for autocracy:
1. A former president is entitled to obstruct investigators if he doesn’t trust them.
2. A former president is entitled to withhold documents from investigators based on his belief that he declassified the documents.
3. Federal law grants a former president sole authority to decide what he can keep.
4. The mere act of taking documents makes them the former president’s rightful property.
5. A former president is entitled to hide documents from investigators, as long as he doesn’t destroy them.
6. A former president is entitled to destroy documents.
7. A former president can ignore rules about sensitive documents because the people who make and enforce those rules are corrupt.
8. Former presidents are exempt from the classification system.
9. Congress can’t constrain a former president’s treatment of documents.
10. No former president should be prosecuted.
11. Prosecution of a former president who seeks re-election is like a coup.
As for whether the documents contain National security information that would seem to be a question of fact for the jury. Without knowing what’s in the documents, it seems like a rather silly debate.
“ 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.”
I don’t recall one news story saying that there is no intent element to the crime. What is inch-deep is a one page legal analysis that cites to zero case law. Such a masterful analysis, according to legal hack Begley, would get a failing grade in Prof Althouse’s class.
Trolls had to wait for their talking points to be distributed, as shown by the late mob-blog.
1. A former president is entitled to obstruct investigators if he doesn’t trust them.
2. A former president is entitled to withhold documents from investigators based on his belief that he declassified the documents.
3. Federal law grants a former president sole authority to decide what he can keep.
4. The mere act of taking documents makes them the former president’s rightful property.
5. A former president is entitled to hide documents from investigators, as long as he doesn’t destroy them.
6. A former president is entitled to destroy documents.
7. A former president can ignore rules about sensitive documents because the people who make and enforce those rules are corrupt.
8. Former presidents are exempt from the classification system.
9. Congress can’t constrain a former president’s treatment of documents.
10. No former president should be prosecuted.
11. Prosecution of a former president who seeks re-election is like a coup
1. No - but but he can if their investigation is not legitimate. It isn’t.
2. Yes, if they are requesting classified documents. Declassified documents aren’t classified.
3. Yes. See the Clinton Sock Tape case.
4. Yes - because he has sole discretion in determining what is a personal paper, and what is a Presidential record.
5. No evidence of that actually happening. All that Bratt really has is Trump’s failure to produce subpoenaed documents, after refusing to give his lawyers sufficient time, as well as denying them rolling document production, which is standard in this sort of case.
6. Yes - if he has determined that they are personal papers, and not Presidential records.
7. Misleading question. Who gets to determine what is a “sensitive document”? The President, or bureaucrats? The correct answer is the President, because the entirety of the bureaucrats’ power is derivative of his.
8. Misleading again. The classification system no longer applies to documents that a President has declassified, explicitly or implicitly.
9. Yes. Separation of Powers.
10. No.
11. Prosecution of a leading Presidential candidate using trumped up, fabricated, LawFare designed charges is a coup.
“I don’t recall one news story saying that there is no intent element to the crime. What is inch-deep is a one page legal analysis that cites to zero case law. Such a masterful analysis, according to legal hack Begley, would get a failing grade in Prof Althouse’s class.”
You seem to have been asleep through the entirety of Trump’s term. The question of Intent (and Materiality) were central to the scam pulled off by the DOJ in keeping the RussiaGate investigations going for almost all of Trump’s term in Office. Benjamin Weisse, head of LawFare, proposed an interpretation of the §1001 Obstruction of Justice statute that read Intent and Materiality out of the statute. This interpretation was then used to prosecute and persecute Trump’s inner circle, starting with LTG Flynn. Bill Barr wrote a legal memo demolishing that misreading of that statute. He then used that, along with a similar DOJ OLC opinion to shut down the Mueller investigation. The LawFare removal of Intent and Materiality has never been tested in court (though Judge Sullivan tried). It has never been upheld by any federal courts. The requirements are there for a reason - to prevent what Andrew Weissman, et Al, we’re doing - using the statute for perjury traps, which are process crimes.
“ As for whether the documents contain National security information that would seem to be a question of fact for the jury. Without knowing what’s in the documents, it seems like a rather silly debate.”
Not really. President Trump, while in office, explicitly or implicitly, determined that they didn’t, and thus don’t. But yes, the last people you want making that determination are in the Counterintelligence and Export Branch of the DOJ (headed by Jeff Bratt, himself) and the counterintelligence Division of the FBI, which together drove the crooked Crossfire Hurricane and RussiaGate investigations. Yes, the lead prosecutor, Jeff Bratt would love those two organizations (one of which he runs) determine whether those documents contained national security information. But they can’t.
Bruce - since you apparently believe there are lots of news stories out there saying that the mere possession of classified records by Trump is all that the prosecution needs to prove, perhaps you can point me to a single one?
@rcocean asked for an explanation of whether the crime-fraud exception to the attorney client privilege applies here. The answer is not clear based on the alleged facts but the exception probably does apply. The issue is whether the attorney-client privilege applies to communications between a client and his lawyer where the client is using the lawyer as an unwitting tool of crime? I think not. I don’t see how the purposes of the attorney-client privilege are served by protecting communications in that case. If all that happened here was that the lawyer gave Trump advice, and Trump ignored it, then the communications would be protected. But here, Trump hid documents so that the attorney wouldn’t find them, see Indictment pars. 54-71, and would therefore give a false affidavit to the grand jury stating that Trump didn’t have any responsive documents. He deliberately used the lawyer as a tool to communicate a lie on Trump’s behalf to the grand jury. Therefore the communications that were part of Trump’s scheme to commit this crime (obstruction of justice) should not be protected. I have not researched the law on this point, however, I am just analyzing the facts in terms of first principles. In any event, the trial judge will have to decide whether to admit this evidence, and in doing so the trial judge will not be bound by the earlier judge’s decision to allow it to be presented to the grand jury.
If i get the document part right, Trump was waving around a paper Milley had given him about the prep for invasion of Iran. This seems kind of sketchy. Was Milley trying to sell the invasion? Where was the SecDef?
Of course we have prep plans for contingencies. Did Trump ask to be shown this one? If he had, there had better have been one.
If he hadn't asked, what was the deal about showing it to him?
Was it Milley's idea passed through SecDef and on it went to the WH? If so, why? Why this one? Are there others which are taken to the WH in all their detailed--continuously updated and thus frequently obsolete--glory?
All POTUS needs to know is that there is a plan for the invasion of Lower Slobbovia in case we need to invade there instead of Upper Revolta. For which there is also a plan. And the one about Ruritania is ages old. Unless the POTUS has the military experience of any rank above Basic trainee, he's not going to have much material to say about
The political impact of footnote 437 about Naples' prep to handle two hundred troop transports at 48 hours notice so the 173d can jump on the Teheran airport can be handled at the embassy level. I kid. Hope that wasn't TOP SECRET.
If the picture of Milley showing this to Trump and leaving the bullet points or whatever is correct, I hope it comes out in the near future as to WTF.
Intent was read into a statute to the benefit of Hillary Clinton.
Intent was read out of a statute to the detriment of Donald Trump.
Seems like the DOJ has this down to a science.
“Bruce - since you apparently believe there are lots of news stories out there saying that the mere possession of classified records by Trump is all that the prosecution needs to prove, perhaps you can point me to a single one?”
Huh? I am saying just the opposite.
“ The issue is whether the attorney-client privilege applies to communications between a client and his lawyer where the client is using the lawyer as an unwitting tool of crime? I think not. I don’t see how the purposes of the attorney-client privilege are served by protecting communications in that case. If all that happened here was that the lawyer gave Trump advice, and Trump ignored it, then the communications would be protected. But here, Trump hid documents so that the attorney wouldn’t find them, see Indictment pars. 54-71, and would therefore give a false affidavit to the grand jury stating that Trump didn’t have any responsive documents. He deliberately used the lawyer as a tool to communicate a lie on Trump’s behalf to the grand jury. ”
Except that that isn’t evidence. It’s argument. And the argument seems to have been that they knew Trump was hiding documents, so needed to pierce attorney/client to prove it. And what’s the recourse when they fail? Is Bratt going to jail? Of course not. He’s an asst special counsel, so he can ie to his heart’s content with no repercussions.
Richard on war plans:
Sir, you are correct. There are plans for all contingencies. Some are very detailed, others are just staff studies regarding what would be needed for whatever.
Back in the 20s and 30s we had plans to invade Canada in case of war with the British Empire. Not that the plans were well developed as the Fleet Exercises always assumed war with Orange (Japan).
@Bruce Hayden: You’ve encouraged me to do some research on the level of proof required for a trial judge to admit evidence under the crime-fraud exception to the attorney-client privilege. Although the law is not well settled on this, most trial courts will allow it if the prosecution establishes a prima facie case that the communications were made in the course of a crime being committed by the client. See Cary Bricker, “Revisiting the Crime-Fraud Exception to the Attorney-Client Privilege,” 82 Temp. L. Rev. 149 (2009), available at https://scholarlycommons.pacific.edu/cgi/viewcontent.cgi?article=1211&context=facultyarticles#:~:text=to%20vitiate%20the%20attorney%2Dclient,has%20some%20basis%20in%20fact.&text=not%2C%20however%2C%20address%20any%20distinction,in%20civil%20versus%20criminal%20cases.. In the instant case, the prosecution has evidence that (1) Trump and his lawyer met to discuss the subpoena, (2) after that discussion, Trump ordered that boxes containing subpoenaed documents be moved out of the storage room, (3) the attorney then searched the storage room and found no additional subpoenaed documents, (4) the attorney then advised another attorney to submit the affidavit attesting that no responsive documents were found after a diligent search, (5), Trump then ordered the documents containing subpoenaed documents to be moved back into the storage room. I think it’s a fair inference from these facts that Trump intended to use the lawyer as a tool to convey false information to the grand jury and that inference is sufficient to invoke the crime-fraud exception. The trial jury, of course, is free to come to its own conclusions about what Trump was doing and why.
Mikey.
Yeah. Could go on.
Question here is why Trump had this paper to begin with. Milley showed it to him? To what end?
Paul said...
Don't matter how flawed it is.. they will just get a woke jury that hates Trump and convict him anyway.
It's in Miami, they're not going to get a NYC level dishonest jury, which is what they need
Don't matter if later on appeal it is thrown out.. they will still have that felony conviction to stop Trump with.
How doe s a felnoy "conviction" "stop Trump"?
gadfly said...
Once again, Trump is testing America’s tolerance for autocracy:
2. A former president is entitled to withhold documents from investigators based on his belief that he declassified the documents.
I'm just going to stop it right there:
The President has an absolute and plenary authority to declassify documents.
Go look up those words if you don't understand them.
If the former president believes that, as President, he declassified the documents, then he is correct.
So yes, he absolutely can refuse to give up those documents in response to a demand for classified documents. Because they're not classified.
https://www.politifact.com/factchecks/2017/may/16/james-risch/does-president-have-ability-declassify-anything-an/
"The minute the president speaks about it to someone, he has the ability to declassify anything at any time without any process."
Is that accurate? Independent experts said Risch is on target concerning the legal powers of the president.
If President Trump pointed his finger at those packed boxes, and said "I nearby declassify every single thing in any of those boxes", then every single thing in all of those boxes is declassified.
No ifs, and, buts, maybes, or kinda sortas.
The US Constitution does not have an "except for Trump" exceptions to the power of the President. The enemies to democracy and the rule of law are the ones like gadfly, Jim and Douglas pretending otherwise
Steve said...
Intent was read into a statute to the benefit of Hillary Clinton.
Intent was read out of a statute to the detriment of Donald Trump.
Seems like the DOJ has this down to a science.
Nope. The statute was simply ignored in Hillary Clinton's case.
She deliberately and with intent set up a non-classified email server that would carry classified documents, because every single job related discussion between the President and the Sec of State is "inherently classified", and she set up the server for the purpose of running those conversations through it.
Comey simply lied
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