The Trump Prosecution by the Numbers: 90, 70, 12, 1

Below is my column in USA Today on crunching the numbers of the prosecution of former President Donald Trump. The most important may be the number one. In this case (as Three Dog Night warned), one “is the saddest experience you’ll ever know.”

Here is the column:

The arraignment of Donald Trump is a historic moment as a former president stands in the dock to plead not guilty to a federal crime. It may foreshadow an equally historic trial in the Florida courthouse.

A few key numbers could ultimately determine whether the case is history in the making or much ado about nothing. Those numbers are 90, 70, 12 and 1.

90: Prosecutors are on the clock

Now that the Justice Department is on the docket, the countdown begins. There is a reason why special counsel Jack Smith dedicated one of his few public lines after the indictment to declare that the Justice Department is intent on pursuing “a speedy trial.” Smith’s greatest problem is not Trump, but time.

The Justice Department has long followed a rule that it should not take actions that could influence elections. While there are ambiguities around the meaning of this policy, many legal observers read this rule as kicking in 90 days before an election.

The first primary elections are scheduled for the first week of next February. That places the redline for prosecutors in the first week of November.

Since the Justice Department has generally followed this rule, a departure for Trump would reinforce the view of almost half of Americans that the charges are politically motivated.

However, a failure to try the case before November could mean pushing the trial until after the election.

Republican contenders are already suggesting that they may pardon Trump if elected, and Trump might even be able to issue himself a pardon if he is the winner. It could mean that Smith might never see a jury seated in this case, let alone a guilty verdict.

70: Trump trial could start as early as August

That is why Smith is invoking the constitutional right to a speedy trial − a right that protects the defendant, not the prosecutors. A speedy trial under the Sixth Amendment − and a federal statute − would set the case for trial within 70 days. That would put the trial before the end of August.

However, criminal defendants routinely waive the right to a speedy trial because it does not allow them to fully prepare for trial. The Trump team would be legally insane not to waive.

After a waiver, the Trump team can then delay matters further by filing a series of challenges on threshold issues − ranging from the use of the Espionage Act to relying on the compelled testimony of Trump’s former counsel. After a period of briefing before the trial court, appellate courts could delay the matter for months depending on whether they expedite review.

12: Selecting an impartial jury will be a daunting task

This case will require a particularly demanding jury selection process to find 12 jurors (plus alternates). Jurors are no longer expected to have no knowledge of a controversial case. Indeed, I do not think we would want a juror who has lived in such seclusion as to have avoided any knowledge of Trump, Mar-a-Lago or this fight over documents.

However, few people seem undecided on these charges. Indeed, this might be the most talked about and least read indictment in history. People seem content that the case confirmed either a pattern of Trump consistently flouting the law or the Justice Department unrelentingly targeting Trump. Identifying such bias will be a challenge for the court and counsel.

1: Neither the Defense nor the Prosecution Can Lose One

The last number is probably the most important for both sides.

For Trump, his team must run the table on all of the 37 counts. As a man who will turn 77 years old on Wednesday, Trump cannot allow for a single count to survive because the charges come with a potential of 10-12 years in prison. It would ordinarily be unlikely for a first offender in such cases to receive prison time, but this is no ordinary case.

Even half of the time served on one of these counts could be a terminal sentence for a man of Trump’s age. I am the founder of the Project for Older Prisoners, and I can attest to how prison ages people, particularly those with no prior experience with incarceration.

There are cases going both ways on sentencing. Egregious cases such as the one involving President Bill Clinton’s former national security adviser, Sandy Berger, resulted in a light plea. Berger, who stuffed classified documents in his clothes to remove them from a secure facility, was allowed to plead to a misdemeanor, received two years’ probation and was given only a three-year suspension – not a permanent revocation – of his security clearance.

Yet, Asia Janay Lavarello, a former civilian employee of the Defense Department, was recently sentenced to three months in prison. That was on on one count of mishandling such material, and Laverello pleaded guilty.

The number 1 also is looming for Jack Smith. Just as Donald Trump cannot lose a single count, Smith cannot lose a single juror without facing a hung jury.

That’s the Trump prosecution by the numbers, and they add up to far more uncertainty than either side seems willing to acknowledge.

Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley

217 thoughts on “The Trump Prosecution by the Numbers: 90, 70, 12, 1”

  1. Anonymous – I am ignoring the remainder of your comments.
    You refuse to deal with the law, due process, fundimental judicial porocedure as the actually are – get just the rules of judicial procedure correct – and 95% of your arguments disappear.

    Regardless, Turley or Darren or WP has made it incredibly difficult to reply to anonymous postings.

    And your arguments are so much schiff that additional effort is a waste of time.

    You have been proven wrong – repeatedly. You refuse to correct simple errors – that have nothing to do with Trump or DOJ but are just very basic aspects of how the law works.

    You repeat the same debunked arguments – uncorrected, or modified and without adding anything new.

    There is no point to further reply and I am not going to endure the difficulty of replying to an anonymous post that has been created by whatever change has occured with WP.

  2. Anonymous.

    The presumption in understanding a judicial opinion is that it says plainly what it means.
    If your defintion of “understanding” Reguires sticking your head up your ass and reading hyroglipohics from the inside of your colon – then it is YOU that does not understand.

    The claims you have made regarding JW V. NARA – are not present at all in the holding.
    They also require the court to have engaged in fact finding without a hearing and presentation and cross examination of evidence – which did not occur.

    These are violations of common law, judical procedure and due process.

    Is that really what you want to argue – that Jackson engaged in multiple violations of the cannons of judicial procedure ?

    The only assumption regarding her opinion that can be correct – is that it rests on the LAW alone- not the facts – or atleast not the facts in dispute.
    Whether the tapes where personal is a question of fact. It can not be determined without examining the tapes themselves.
    That was not done. alleging a fact – does not allow you to prevail in a motion to dismiss.

    We have spent centuries coming up with the rules of judicial procedure – it has taken centuries of effort to get these rules logically and functionally correct.
    You do not just get to ignore them at your whim.

    Read judge jackson’s holding AGAIN with the understanding that ANYTHING you think is a conclusion of FACT can not be unless bother parties agreed.
    A judge can decide the law without findings of fact ONLY when the facts are agreed on, or after a trial that ends in either the judge or jury making clear explicit findings of fact as part of their decision.

  3. “Yes, ex-presidents can violate the espionage act. They are no longer president.”
    Please read what I actually wrote – as is typical you are off in never never land.

    Obviously Trump could return to the WH and steal classified documents and be prosecuted under the espionage act – As could Roosevelt or Johnson under the same circumstances.

    Absolutely ex-presidents are subject tot he espionage act – should the violated it AFTER leaving office.
    Trump transfered the documents to MAL While president.

    Even The Pentagon papers makes it clear that once classified docs are out of the control of government – the power to claw them back is gone.

    WaPo and NYT received copious amounts of classified documents. They committed no crime in receiving them. They could not be prosecuted for publishing them.

    That is settled law.

    Trump committed no crime transfering documents to himself at MAL.
    He not only OWNED those documents per JW V NARA, but even in idiot left wing nut world – he legally posessed those documents.
    And just like WaPo and NYT was free to do with them as he pleased.

    Now, had he stolen documents after leaving office, paid others to do so, or bein provided classified documents by Biden and then made them public – that he could be prosecuted for .

    The espionage act can not make a act that was legal when it occured illegal a few minutes later without something changing.

    “They did not create those documents”
    WH documents are presumed to be the work product of the person that is president.
    You are entirely unfamiliar with the law regarding the ownership of intellectual property.

    “they no longer have the unfettered access to those documents as they did as president.”
    Mostly they do – but that is irrelevant. PResidents have the power to give anyone they want unfettered access to classified documents – again established law.
    In many instances doing so declassifies those documents.

    Presidents unarguably have the power to transfer classified documents to their homes. Happens all the time.

    No one has alleged the transfer of documents to MAL was illegal.
    While that is NOT true of the transfer of documents to VP Biden or VP Pences homes.

    Presidents can order classified documents sent to the moon.
    VP’s can not.
    Presidents can give themselves unfettered acceess to documents – including unfettered access AFTER They are president.
    Techincally Trump could grant himself an infinite security clearance forever and retain it as ex president – while that did not happen, and if he did so the next president could cancel it. IT is still within the power of a president.

    “They are in a need do know basis.”
    Not exactly – The handling of classified documents is specified by Executive order.
    Presidents and Vice presidents as well as ex-presidents and vice presidents have by EO unlimited access without a need to know.

    “Trump’s security clearance is no longer valid since he is already a high risk individual who cannot be trusted with classified defense information.”
    Was Obama’s EO recinded or modified by Biden ? If not you are incorrect.

    “Trump’s charges directly apply the espionage act. Nowhere in the indictment is the PRA mentioned. ”

    Therefore the Espionage act claims are error.
    “He’s not being accused of violating the PRA.”
    If he did not violate the ‘PRA then there is no crime – YOU clzaim the PRA deprives Trump of OWNERSHIP,
    If he did not violate the PRA – then he owns the documents in his posession and can not violate the espionage act.

    Thi sis how it has been for all expresidents since 1787.

    “Trump is not the president.”
    Prior to Jan 20, 2021 at noon he was. The docs were ordered Transfered to MAL porior to that.
    They were physically removed from the WH by the GSA or some by Trump personally AS PRESIDENT prior to that.

    “That’s what you don’t seem to understand.”
    Actually it is YOU that does not seem to understand that inaugurations are not rhetro active.
    Trump was president up to non Jan 20, 2021. Every single thing he did or directed prior to that point was a presidentital act.

    Technically the president could declassify the entirety of all classified records in the US govenrment at 11:59 on the last day of his presidency.

    “He has been hoarding national defense information that is not his to claim as personal property.”
    Why not – you keep ignoring that. Sometime before the last day of his presidecy he gave it to himself.
    That is inarguably true – it did not get to MAL by magic carpet.

    On Jan. 21, 2016 Did Trump have the power to order classified docs to MAL ? Of course he did -just as Biden has now.
    Trump retained that power through Jan 20, 2021 at noon.

    “Taking it home did not automatically declassify all those documents.”
    Does giving the documents to The Russian ambassador declassify them – of course it does.
    If the president gives a classified document to someone they are declassified.

    Regardless, whether the docs are still classified is not a big deal.
    It is not even all that big a deal whether Trump owns them – though inarguably he does.

    What matters is did he have the power to transfer them to MAL.
    And the answer is beyond any doubt while President yes.

    So the Docs arrived at MAL legally. Assuming YOUR claims – that they were not declassified and not Trump’s property,
    They are still at MAL legally.

    NARA STILL has no authority to get them, nowhere in the PRA is any portion of the executive granted the power to retrieve documents from an expresident.

    If a law does not direct something – then no one has the power or authority to do it.

    So the docs are legally at MAL and short of getting a court order legally free to remain there.

    Classified or not, Trum[‘s property or not.

    “None of god lawyers have ever claimed in court those documents are declassified.”
    Of course they have.

    And DOJ explicitly claimed that for Clinton in JW. V NARA.

    “In order for Trump to declassify documents an entire process must take place and all such documents must be marked “declassified”.”
    Nope – and this is a ludicrously stupid claim.

    Pres. Johnson declassified the existance of the SR-71 at a pres conference.

    PRes. Reagan did the same with the F117 again at a pres conference.

    Obama declassified the locations of the “US nuclear weapons by agreeing to a treaty with Russia.

    Trump declassified intelligence regarding terrorist plans in the mideast by giving it to the Russian ambassador.

    Trump declassified information by tweet on Twitter – and the courts ruled those as binding executive orders.

    You are just making this idiocy up.

    “Trump had not shown any such documents to the public.”
    ex-president Trump IS the public. PResident Trump transfered these docs to expresident Trump at MAL.
    He KNEW when he ordered them sent to MAL that they were being removed from Government control
    So he was ordering them declassified – just as if he directed them to be transfered to the Russian embassy or to Stormy Daniels.

    ” Don’t you think it’s strange if those documents are really declassified why hasn’t trump shown them to the public?”
    Not at all. And in fact alot of this started because DO/FBI beleived that he was about to do exactly that.

    “Trump didn’t declassify anything and because he’s no longer president”
    Again he was when they were transfered to MAL.

    “any documents still classified in his possession and the haphazard storage of highly classified documents are direct violations of the espionage act.”
    Did the NYTimes and WaPo violate the espionage act by failing to put the pentagon papers in a SCIF ?
    “Refusing to turn them over is another.”
    Did they violate the espionage act by failing to return the pentagon papers when the govenrmnt demanded them ?

    SCOTUS said no – this is a decided issue.

    “JW v. NARA is irrelevant.”
    Because you say so ?

    DOJ thought it was very relevant in 2012.

    “Trump is no longer president.”
    Clinton was no longer president in 2012.

    ” He has never proved that the documents he claims are personal meet the definitions of what is personal under the PRA and the espionage act.”
    He does not need to – DOJ already proved that. That is litterally what JW V NARA is about – if the president says the docs are his – they are his.

    “Trump literally stole those documents.”
    Do you have video of him roaming the halls of the WH on Jan 21, 2021 sneaking out with classified docs ?

    “Smith already has clear evidence of intent and motive.”
    Incorect and irrelevant.

    If you can prove I intend to murder you.
    If you can prove I have a motive to murder you.
    But I never murder you – I have not committed a crime.

    This is a common stupid left wing nut argument.
    Intent nor motive make a legal act illegal.

    You do not have intent – Trump has been angrily consistent from Day one – claiming the Docs are HIS.

    So long as Trump has a reasonable beleif the docs are his – and he abviously does,
    Absent a court order establishing they are not, his efforts to preserve his own proprtty rights are not a crime.

    “The argument you make is completely irrelevant because you’re arguing it as if trump is still president. He’s not.”
    No I am pointing out the undisputed FACT that Trump WAS president. And anything he did legally while president – remains legal.

    Trump legally transfered these docs to MAL while president.
    They remain at MAL legally until a court orders him to return them – which never happened.

  4. “Again your interpretation is incorrect.”

    I am not “interpreting anything. I am reading what Judge Jackson – and other courts said – and now ALSO what DOJ argued.

    “The PRA is explicit on what constitutes presidential and personal records.”
    Both false and irrelevant.

    The executive powers clause requires that if NARA can make a decision the president can.
    The courts have ruled – accepting what DOJ argued – that the decision is the presidents on any basis he wishes – regardles sof whether the text ot the PRA is clear (it is not) or not.

    You are unable to read.

    “There’s no ambiguity or confusion.”
    Correct – there is no ambiguity of confusion – the President can do as he pleases with WH documents.

    “The constitution says nothing about the issue other than the president’s general powers.”
    The constitution says that Congress can not give a power to the executive without giving it to the president – while that is a genral statement it is also an unlimited statement. All execuitive powers are vested in the president.

    Last time I checked the 4th and 5th amendments were still present in the constitution.
    For 202 years the wh papers of the president where personal property. Congress can not willy nilly change constitutional rights by statute.

    Can congress pass a law that says no president after Biden has the right to free speech ?

    Then why do you beleive Congress can pass a law that says that future presidents must cede their property rights ?

    And this is only ONE problem that you have.

    “The PRA further clarifies how those powers limited by congress.”
    Using powers Congress does not constitutionally have.

    Where in the constitution was congress empowered to confiscate property ?

  5. Anonymous.

    “The Judge only pointed out that the tapes were personal because they met the set definition in the PRA.”
    This is called LYING.

    Please cite where in her oppinion Judge Jackson says this ? The answer is NOWHERE.
    This was a motion for dismissal. Jackson was BARRED by law from adjudicating questions of fact in a pretrail motion to dismiss.

    Where in here oppinion is the “finding of fact” that these tapes were personal property according to the PRA ?
    Nor could there be such a finding.

    Here is the HOLDING inj JW V NARA – that is the binding decision.
    NoWhere does Jackson mention Personal property.
    In fact JAckson specifically states -“even if the Court agreed with plaintiff’s
    characterization of the materials” if would have ruled against it.

    “The Court will grant the motion to dismiss pursuant to Rule 12(b)(1) because plaintiff’s
    claim is not redressable. NARA does not have the authority to designate materials as
    “Presidential records,” NARA does not have the tapes in question, and NARA lacks any right,
    duty, or means to seize control of them. In other words, there has been no showing that a remedy
    would be available to redress plaintiff’s alleged injury even if the Court agreed with plaintiff’s
    characterization of the materials. Since plaintiff is completely unable to identify anything the
    Court could order the agency to do that the agency has any power, much less, a mandatory duty,
    to do, the case must be dismissed”

    If you want people to Trust you – DONT LIE.

    “NARA had no authority to retrieve the tapes because they were not presidential records.”
    A false conclusion as that requires a finding of fact which is not present in the decision and not possible in a pretrail motion to dismiss.

    “They didn’t require Clinton turn them over. Clinton was entitled to do whatever he wanted with them because they were personal as defined by the PRA.”
    No Clinton is entitled to do whatever he wanted with them because they are personal as decided by Clinton as president.
    A decision that MUST belong to the president to comply with the executive powers clause and is not revieable by the courts.

    “That did not mean anything he claimed to be personal was automatically personal.”
    Actually that is EXACTLY what was decided – and not for the first time.

    “It still had to meet the definition spelled out in the PRA.”

    Nope. Read the decision – the holding, the analysis, the prior caselaw.

  6. Anonymous – I can read – something you apparently can not.

    I can read what Judge Jackson wrote – again something you can’t.

    I can read what numerous judges before her wrote – again something you can’t.

    But now we learn – most importantly – I can read what the Obama DOJ argued and WON – EXACTLY the arguments I have been making – and then some.

    But lets pretend for a moment that my legal skills are not OBVIOUSLY far better than those who have been REPEATEDLY wrong.

    The people YOU think are so great are FIRST people who in the past have argued EXACTYLY what I have.

    Some of them were part of the DOJ clinton JW V NARA case. But many of them were outside scholars at the time – whose public comments on the case that with near certainty contradict what they are saying today will come to light soon enough.

    Find me which of your left wing scholars was arguing in 2012 that Clinton’s tapes were records that NARA was obligated to retrieve, that Clinton’s efforts to avoid returning classified information was a crime ?

    Show me which of YOUR great legal experts is not a schiff like two faced hypocrite ?

    But again – lets assume that my arguments are less than perfect. They are still devastating to Smith and to YOUR CASE.

    They are far far far more than necessary to end the case. They completely obliterate criminal intent.

    Trump has been absolutely clear from the start – These documents are HIS. He has relied on the arguments the Obama DOJ made in 2012.
    Her has relied on the opinion that Judge Jackson issued in 2012.
    And he has been clear on that.

    YOUR claim that I am wrong is a false pretense that tiny details somehow favor you.
    But the FACT is that EITHER Trump is absolutely correct and these documents are HIS, or YOUR claim that he is wrong is so deep into legal mintuae that criminal intent is not possible.

    And I would note – that is your BEST case. And frankly a non-existent one.

    It is time for House republicans to impeach Smith, and to impeach Garland.

    There is ZERO possibility they are ignorant of DOJ’s arguments,
    There is Zero possibility they are ignorant of Judge Jackson’s ruling.
    There is zero possibility they are ignorant of the long train of prior cases.

    YOUR claims and YOUR legal experts are refuted – by the Obama DOJ – in some cases by the words of the very lawyers you are claiming are smarter than I am.
    They certainly were in 2012., Today they are merely politically corrupt hypocrites.

    Lets make this absolutely Clear – the DOJ, Garland and Smith had a DUTY to know and abide by prior DOJ arguments in cases that they WON.

    The DOJ briefs in the JW v. NARA case are:

    Sworn verifications before the court. The lawyers who signed those briefs swore the factual and legal claims they were making were correct.
    The same briefs filed with Trump’s warant, and with his indictment SWEAR the same thing about the law.

    Lawyers are free to be honestly wrong about the law – though they are subject to discipline for making arguments that are at odds with current caselaw without making that clear. A lawyer can argue that caselaw was wrongly decided. He can not knowingly argue that it is 180 degrees the oposite of what it is.

    He can not argue the law is one thing for Clinton and another for Trump.

    Republicans should immediately subpeona Garland and Smith demanding the Records of A DOJ finding of law reversing the DOJ position in JW V NARA.

    If they can not provide that – they should both be impeached immediately.

    I would further note – Biden Vowed publicly to go after Trump – Constitutionally.

    This is the perfect example of UNCONSTITUTIONALLY doing so.

    This conduct is the conduct that ACTUAL fascists engage in.

    YOU are a fascist.
    YOUR “legal experts” are fascists.

    Every insult that you toss at others is a reflection of the darkness in your own soul.

    Almost 70 years ago – Jack WElch stood before the MacCarthy committee and famously uttered

    “At long last have you no sense of decency”

    9 words that were the End of Sen/ MacCarthy.

    You and your Ilk are the modern macCarthy’s – only far worse.
    MacCarthy went after communists, which is little different from attacking the Nazi’s or the KKK.
    While MacCarthy saw them under every bush, and persecuted people whose links to communism were minmal,
    He atleas twas after people who supported an evil ideleogy.

    He was still WRONG – for the same reason thaT PAST actual LIBERALS – rather than the corrupt hypocrits on the left today, defended NAzi’s and communists,

    We all have the right to be wrong. We all have the right to say vile, hateful, stupid and wrong things.

    But YOU unlike MacCarthy are not WRONGLY going after vile hateful, despicable people.
    You are going after political enemies. You are WORSE than MacCarthy.

    Where is the Jack Welsh to put you in your place ?

    Where is the Edgar R. Murrow to expose YOUR political corrupt and morally depraved soul ?

    Where are those who would expose you for the disgusting destroyers of the most fundimental american principles.
    The rule of law – not men.

    In case you are two DENSE to grasp – arguing one way for a friend and the other for an enemy is “the rule of man, not law”.

    And if allowed to stand is the end of the rule of law.

    But you are lawless.

    Why am I far more likely to be right than your “legal experts ? Because they are two faced.
    They were either lying before, or are lying now.
    Regardless, they are not trustworthy.

    A first year law student – no matter how they argue, A high school student with a course int eh Constitution and law – is more credible than your “experts” for one very simple reason – they are not demonstrably hypocrits.

    Hypocracy destroys trust and credibility – and this is huge hypocracy.

  7. Anonymous,Yes, there are excellent reasons why every left wing nut lawyer is saying that I am wrong.

    Because they are liars and hypocrits.
    Because many of them are exactly the same people who argued exactly what I am arguing in the Clinton case – and now I have the receipts.
    Because these are the same people who pushed the collusion delusion.
    These are the same people who claimed the Hunter Biden laptop was Russian disinformation.
    Because these are the same people who impeached Trump for seeking a justified investigation fo the most publicly corrupt vice president we have ever had.

    AGAIN – DIJ LAwyers during the Obama administration made the same arguments I made – and then some, They did so publicly, and successfully in court.
    From the moment Trump left the WhiteHouse on Jan 20,2021, They have been looking to Hypocritically set him up.

    They started this NARA nonxense KNOWING it was a LIE. That is public corruption.

    There is ZERO ability to claim that DOJ was ignorant of their own successful arguments in the Clinton case.

    There is a reason NARA did not go to court – they would have LOST and they knew it.
    There is a reason DOJ did not go to court – they would have lost and they KNEW it.

    There is a reasont hat DOJ has gamed every step of this – using exparte processes – like subpeona’s and warrants – specifically to avoid directly confronting the fact that not only Does Trump own these documents – not only does DOJ KNOW trump owns these documents – byut the Obama DOJ – many of the same people prosecuting Trump are the ones who MADE the law that Clinton and terefore Trump owns these documents.

    I would suggest you actiually read Obama’ DOJ’s arguments – none of this ROT you are claiming that Clinton’s tapes were not “presidential records”.
    The DOJ flat out argued and WON the claim that – The president gets to decide PERIOD, end of story, not even subject to judicial review.

    Where the Clinton tapes classified – FOJ argued – AND WON – does not matter.

    Hypocracy is the most vile of sins.

    It is the open admission that you have no morality at all.

    Just to be Clear – this is not about Trump AT ALL.

    This is about YOUR moral and legal corruption.

    This is about YOUR willingness to lie to the courts, to the people, to anyone to screw over your enemies.

    To have the law one way for your friends, and without any qualms demand it is the opposite for your enemies.

    There is no excuse here.

    Those involved in this KNEW what they were doing. They were LYING.
    LYING to all of us. To the courts.

    Do you understand this indictment is ITSELF a crime – It is a violation fo the civil rights of another under color of law.

  8. Anonymous;

    There is an excellent editorial in the Wall Street Journal by the Lawyer that
    LOST JW. V. NARA – explaining why your arguments are in error – because he made those arguments and more to Judge Jackson and she rejected them all AS A MATTER OF LAW.

    But there is a far more important revalation in the editiorial – and that is the Arguments made by Obama’s Department of Justice to Judge Jackson.

    These are important – partly because they are the winning arguments, but more importantly because they Reflect the position of the Department of Justice regarding the PRA – and these arguments are BINDING on SC Smith – absent judge JAckson rejecting thme in the case – which she did not.

    DOJ in 2012 made ALL the same arguments that I have made – and then some, and they PREVAILED.

    It is the position fo the DOJ under Obama that the PRA and the constitution allo0w a sitting president to take ANY records they please – classified or not and that those records are the presidents personal property. That The constitution and the PRA require this.
    That the decision of the president to take records is unreviewable by the courts.
    That it is irrelevant what is contained int he documents,
    That it is irrelevant whether those documents are classified or not.

    SC Smith MUST drop all charges NOW, or the House MUST impeach him for engaging in political prosecution.

    You and Smith are wrong – not merely as a matter of law – but specifically because you are seeking to hypocritically engage in a politically weaponized prosecution – at odds with the official position of the DOJ on the PRA and presidential records.

    It is this kind of political weaponized BullSchiif that is why no one trusts YOU,
    No one trust democrats.

    Judge Cannon should immediately dismiss WITH PREDJUDICE – that is not going to happen – but it should.

    You,. Smith Democrats are immoral, unethical, massively hypocritical and corrupt.

    As well as two faced, and did I say hypocritical ? Again Hypocritical

    Hypocracy is the Sin that Christ condemns the most in the New Testament.

    It is the most grevious moral error.

    IT is YOU.


    1. John B. Say,

      You’re wrong. The charges are not based on violations of the PRA. It has nothing to do with the case at all. It’s about violations of the espionage act.

      You and Trump are erroneously interpreting the JW v. NARA case.

      Trump is charged with having secret and top secret information, refusing to turn it over, obstructing the government’s attempts to turn it over and causing people to lie about those records.

      Applying the Clinton sock drawer case is irrelevant to the charges.

      Perhaps this will clarify the issue for you.

      “ However, intelligence on nuclear weapons programs would never have been designated as personal records that could be removed from the White House, he added.

      “Trump is charged with violating the Espionage Act, not the Presidential Records Act,” McQuade pointed out. “The records Trump is alleged to have illegally retained are agency records, such as records of the CIA, NSA, and Department of Defense, not presidential records.”

      She added that retention of these records is covered by the Espionage Act “because of their content — information about the national defense, which information could be used to the injury of the United States or advantage of a foreign nation.”

      On top of this, Trump ignored a subpoena requiring him to turn over highly classified material and engaged in repeated efforts to obstruct the government’s efforts to retrieve the documents. But that hasn’t stopped Trump from drawing irrelevant parallels and bringing up Bill Clinton, his 2016 Democratic rival Hillary Clinton, vice president Mike Pence and even President Joe Biden.

      All four of them have been questioned about the retention of records pertaining to their public service, but none of them refused to comply with the government.

      There’s a difference between their actions compared to Trump’s, Devaney said, pointing to Trump’s intent and actions with how he behaved after he had the documents in his possession.

      Trump’s recent indictment alleged that he tried to convince his attorneys to lie to authorities about federal documents and repeatedly enlisted aides to help him hide records requested by investigators.

      “The people who aren’t criminally charged or aren’t charged at all in these cases are the ones who accidentally removed classified information,” Widge said. “They cooperate with the government in its investigation and return of the information. It demonstrates that they had no intent to remove or further disseminate any type of classified information.”

      Your argument using the JW case is irrelevant. Trump wanting to draw parallels with Clinton or Biden is fundamentally flawed.

      1. John B. Say,
        You’re wrong. The charges are not based on violations of the PRA. It has nothing to do with the case at all. It’s about violations of the espionage act.

        Without YOUR interpretation of the PRA there is literally no possible violation of the espionage act.
        Presidents can not violate the espionage act.
        Ex-Presidents can not violate the espionage act by taking papers that are Their with them – as every president since the founding of this country has.

        Your claim that the espionage act applies is ludicrously stupid.

        JW V NARA says it does not matter if the documents are classified – they are the expresidents.
        The constitution says that national security is the exclusive domain of the president.
        If a president says somehting is declassified – it is.
        If a president acts as president in a way that would violate the espionage act – such as by transfering Classified documents to his private home where he will have them after he is president. There can be no espionage act violation – because the president can not violate the espionage act.
        Therefore the documents are declassified by the act of moving them
        BTW that is NOT my claim – WaPo and NYT grudgingly concluded the same when idiotic claims of Trump mishandling classified documents were made early in the trump administration.

        There is only one remedy for conduct that violates national security by a president – that is impeachment.
        You had your shot at that and fell short.

        The espionage act CAN NOT apply until you prove – these documents are NOT Trump’s Proprty and they Are NOT declassified.

        You MUST prove BOTH.

        You need BOTH the PRA and caselaw that does not exist to prove the first.

        You can not prove the 2nd at all.

        Nor BTW is even that enough. Absent Trump sneeking into the Whitehouse on Jan 21, 2021 and stealing classified documents – you have nothing.

        Even if you can thread the needle – and manage to get Trump in posession of documents that are still classified – which would require the Biden admin to have provided him those documents. Ex-presidents retain a security clearance – they are legally entitled to possess classified documents.

        So to get to an espionage act violation – you need:

        Documents that are not Trump’s property – classified or not – Without the PRA and caselaw you do not have you can not get that.
        Documents that are still classified – Even if the PRA applies as you claim it does – Trump’s direction to remove classified documents from the whitehouse while still president and move them where they are no longer protected – would declassify them – even if the PRA applied.

        So you need Documents that did NOT come from the Trump WH, that Trump then mishandled.

        That means either you need Trump to have stolen classified documents – as Senator Biden did, and as VP Biden did,
        Or to have legitimately received classified documents from Biden and then mishandled them.

        And just to be clear – even that – which no one has alleged, still leaves you in legal limbo.

        Absent PERSONALLY stealing classified docs – as Sandy Berger – and Sen. Biden did, Obtaining classified documents from others and then providing them to the press has NEVER been prosecuted, and The Pentagon papers case strongly suggests it can not be.
        To prosecute someone under the espionage act who is not currently in government or who did not illegitimately obtain documents while in government – something that is not possible for a president to do, you must have them bribing people with legal access to get them.

        I am hard pressed to think of a single espionage act violation of a person outside of government – even with a security clearnace – that did not steal those documents, or bribe others to do so.

        When I received my classified Dcouments training – in order to get my TS/SCI clearance. We were trained OVER AND OVER that mishandling classified documents – as a non-government employee, would result in the loss or suspension of our secutity clearance. Possible loss of out job – and if a foriegn power was involve a small possibility of criminal prosecution.

        The enforcement of the espionage act Varies depending on the status of the individual being prosecuted.

        Those in the military have the highest duty and are subject tot he highest penalties.
        Minor violations of the espionage act result in a dishonerable discharge, a military criminal conviction and possibly a short jail sentence.

        Those in government – particulary the national security aparatus face the next highest duty and punishment.
        Those in NSA, CIA

        Next are those in govenrment outside the national security aparatus.
        Next would be government contractors with a security clearance.

        And last would be those not employed by government at all.

        Allegedly Waiving allegedly classified documents in front of a journalist – is probably not prosecutor.
        And that appears to be the most significant claim you have. And that is just a claim.
        One you would have to run the tables on the legal issues – just to get in front of a jury.

  9. Anonymous
    It is impossible to reply diurectly to you.
    I am guessing that replies to anonymous posters have been disabled.

    The PRA is very clear who owns those records.
    Actually there is a great deal of ambiguity – just in the PRA.
    Many other clauses are completely or partly inconsistent with the clause you cited

    The PRA gives NARA custody – custody is not ownership.
    The PRA precludes current presidents from rummaging the records of prior executives – that is completely at odds with government ownership.
    The PRA defines the criteria for a presidential record, but makes it claer that all WH records are not presidential records and separately limits judicial review while providing no enforcement mechanism.
    The PRA si not a criminal law, it does not modify any criminal law – yet you are concocting a change to criminal law as a result of it.
    The PRA does not even include civil constraints on failure to abide by it.

    Finally the PRA is at odds with 2 centuries of US history. It is at odds with the constitutional – both the presidential powers clause, the 4th and 5th amendments – just to start. It is also at odds with the way the records of senators and representatives are handled.

    You are claiming that A single clause in a law is clear.

    Often we are lucky and the law is clear – we do not have clauses in one portion contradicting those in others.
    \We do not have one law at odds with another and we do not have the law at odds with the constitution practice, legislative history and our rights.

    The PRA is not an example of that clear consistancy.

    Put in simple terms so that you can understand it. Eitehr you are incorrect regarding the PRA or the PRA is unconstitutional.

    The courts have chosen to “save” the PRA by significantly weakening the clause you have fixated on – among other changes.

    Maybe they would have been wiser to invalidate the whole thing – that would be my preference.
    I do not want the courts changing the meanings of laws – because Congress can not make constitutional and unambigious laws.
    In my view it is far better to strike a law in its entirety and let congress fix it.
    But that has not been our practice.

    The position of the courts as reflected in JW V NARA and multiple prior cases is that:

    The PRA grants NARA (and the federal govenrment) absolutely no power to enforce anything in it.
    Unenforceable laws have little or no meaning.

    That lack of enforcement esentially converts PRA from a constraint on the president into a duty by NARA to take care of Documents that a presiden CHOOSES to give to NARA. There is no Authority win the PRA to take from an ex-president documents they have chosen to keep.

    The decision as to what constituties a personal or presidential record – aside from the obvious problems that is truly impossible to define, additional MUST be vested int he president – per the executive powers clause of the constitution – a constitutionl principle with Hundreds of supreme court cases backing it up.

    The courts have separately decided that decision is eiter unreveiable by the courts or subjected to only the most limited judicial review.

    Meaning that the only means of enforcing a presidents violation of the PRA is impeachment.

    I did not create this mess or these arguments.
    Nor are they new to Trump.

    Contra claims here – not only have all other presidents kept atleast as much as Trump has, including classified information, handled atleast as badly,

    But Bill Clinton explicitly took some 68 tape recordings of conversations that he had in the WH with staff, cabinet members and foreign leaders – many of which were classified, and kept them – allegedly in his sock drawer.

    Judicial Watch Sued using the PRA to force NARA to retrieve them – as they are clearly presidential records as defined by the PRA, they are clearly – according to you government property and they clearly according to the PRA are required to be in NARA’s custody.

    And Judge Jackson told JW to pound sand. That NARA had no authority nor duty to recover the records, that it did not matter if they were presidential records of classified or not, and that the president was constitutionally entitled to do whatever he wanted with them.

    And THAT is the state of the law.

    Now you can claim Jackson was wrong. Though her decision is one of many.

    But Trump is ENTITLED to rely on her decision.

    You can not make a crime out of relying on a Federal court decision with NO conflicting precident just because YOU think that decision is wrong.

    You are demonstrating the epitomy of politically weaonizing law enforcement.

    If Biden/DOJ/FBI/NARA beleived Jackson was wrong, they were OBLIGATED to go to Court FIRST and get that decision modified or overturned.

    Anything less is polticial weaponization of law enforcement – and THAT is an actual crime.

    That is political corruption, and it violates the hatch act hich precludes using government power for purely political purposes.

    Further YOU dictated with the Trump impeachment that going after political rivals using government power was wrong – now you are doing it all over.
    And wrose with far less cerdible a basis.

    1. Trump can’t use the JW v. NARA case as a defense. He’s not being charged with violating the PRA. He’s being charged with violating the espionage act.

      Since this involves purely defense information anything using the PRA is useless.

      Trump can’t claim classified documents as personal property. He is claiming it’s his property by incorrectly invoking the JW v. NARA case and badly misinterpreting it.

      1. Trump can not be charged under the espionage act without proving he violated the PRA.

        Without the PRA – these documents are Trump’s property – that is completely beyond any doubt at all.

        This is also a stupid claim on your part – the Classified documents issue was specifically raised in JW. V NARA.

        The tapes Clinton posessed contained classified information.

        Did Clinton violate the Espionage act ?

        I would further note that ex-presidents and vice presidents legally posess classified documets all the time – Read Obama’s EO on classified Documents.

        Smith must prove Trump ILLEGALLY possessed classified documents. He can not do that without proving that the PRA made expresidents subject tot he espionage act.

        You do not get to make up the law.

        Crimes have elements.

        One of the elements of the espionage act is illegal posession.

        Smith must prove Trump did not LEGALLY possess documents.

        It is presmed – and probably correct that Trump transfered these documents to MAL late in his presidency.

        Whether you like it or not – PRA or no PRA – Presidents can do that.

        Smith must prove Trump had a duty to return them AFTER he was no longer president – because absent a claim that Trump went back to the WH and stole them the LEGALLY arrived at MAL.

        If they are legally at MAL – and no PRA – there is no obligation to return them.
        Frankly even with the PRA as you claim it is – still no obligation to return them.
        I would note that JW V. NARA – independent of the issue of ownership – also concluded the PRA givees NARA no power or authority to retrieve actual presidential documents. Nowhere in the PRA is there a clause empowering NARA to gather documents outside of govenrment, classified or otherwise.

        So NARA’s request are entirely meaningless regarding a claimed crime.

        The best argument Smith has is the subpeona – and that is a really poor one. Subpeona’s are not demands for posession.

        You need Trump to have resisted a legitimat demand for posessin – and that MUST come from a court – but NARA, and DOJ never when to court.

        All you have si Trump ranting that the documents are his – a claim that is justified by JW V. NARA.
        And Trump moving arround property he legitimately and probably correctly believed was his.

        So where is your espionage act violation ?
        For compariason lets address other cases.

        John Deutch – Clinton’s CIA director took classified information as CIA director to his home and left it their unsecured.
        Deutch was a govenrment employee at the pinacle of national security. There were thousands of classified docs on the computer.
        Deutch was convicted, and pardoned by Bill clinton.

        Sandy Berger – as a private citizen with permission to enter the national archives, smuggled classified documents – stole them.
        And received a short suspended sentence, and a briefly suspended security clearance.

        Gen Petraeaus took many classified documents home – improperly and shared them with a woman he was having an afair with.
        Guilty but no jail time.

        Hillary Clinton – While Sec State not merely smuggled thousands of classified documents – and tens of thousands of governmetn records out of the state department, But coerced staff to assist in doing so. Stored these insecurely electronincally on an internet connected mail server that was accessible by hostile foreign powers – one of which was reading the contents real time. Further these documents were backed up multiple times on Huma Abedin’s laptop – each copy of a classified document is another count and Though there were only 3000 unique classified documents that Clinton stole, including copies the number was well over 10,000. And copies matter – because the copies on here mail server – and those on huma abedin’s laptop are each independent crimes and independent security breaches. Nor are we done. Clinton personally emailed TS/SCI code word only – the highest classification of documents – over the intenet – that is another crime.
        To Sydney Blumenthal who used them to his profit consulting in the mideast.
        The clinton case involved massive numbers of federal documents – stealing those is a crime, but a much less significant one than classified docs.
        Further we are talking ACTUAL stealing. Every documents constituttes atleast 4 separate crimes – stealling it. Putting it on the email server, putting it on the laptop, Transfering the laptop to Anthony Weiner, and in some cases sending docs to Syndey Blumenthal and others.

        The clinton case also involved Clinton lawyers without clearances accessing the emails.

        Result – NOTHING.

        Sen Biden – STOLE atleast 1 classified document from a Senate SCIF. There is no legal way for a Senator to have a classified document outside a SCIF.
        There are many who are dmanding that Biden’s Udel archives be searched – because there are hundreds of thousands of documents there. And Biden could be hiding more classified docs there.

        VP Biden – took without authorization – VP’s do not have ownership of presidential papers. and have limited declassification authority myriads of government papers – which unfoubtedly are govenrment property – and many of them are classified. There is no constitutional provision that would allow a VP to claim presidential documents and the PRA would as written apply to the VP without constitutional problems. WH papers are traditionally the property of the president – Not the VP.
        Biden moved these documents many times – including on discovery of classified docs by his lawyers in march 2022 (not Nov. 2022, transfering them to law offices in Masachuettes were they sat until November. There is a claim that Biden deliberately attempted to entrap Trump to coverup his own malfeasance.
        Biden had the power to declassify these documents – but NOT rhetroactively. The documents were illegally in his posession,
        Illegally move multiple times. Likely accessible by the chinese, and incredibly insecurely stored.

        So far NADA.

        The left constantly claims that Pence and Biden “did the right thing” and therefore are not culpable.
        That is FALSE. Repentant and cooperative criminals often receive lighter sentences. But there is no undoing a crime by cooperating.
        And in fact – quite frequently cooperating with law enforcement ends up getting you convicted of even more.

        Regardless, neither Pence nor Biden had a choice. There was no legal way for Pence or Biden to be in possession of classified documents from their vice presidency.

        That is NOT true of presidents. Whether you like it or not – PRA or not, Trump had the power to legally transfer anything he wanted to MAL while president.
        Biden Pence and Hillary Clinton did not. Bill Clinton, and Obama did.

    2. “ And Judge Jackson told JW to pound sand. That NARA had no authority nor duty to recover the records, that it did not matter if they were presidential records of classified or not, and that the president was constitutionally entitled to do whatever he wanted with them.”

      Again that’s wrong.

      The Judge only pointed out that the tapes were personal because they met the set definition in the PRA. NARA had no authority to retrieve the tapes because they were not presidential records. They didn’t require Clinton turn them over. Clinton was entitled to do whatever he wanted with them because they were personal as defined by the PRA. That did not mean anything he claimed to be personal was automatically personal. It still had to meet the definition spelled out in the PRA.

    3. “ The decision as to what constituties a personal or presidential record – aside from the obvious problems that is truly impossible to define, additional MUST be vested int he president – per the executive powers clause of the constitution – a constitutionl principle with Hundreds of supreme court cases backing it up.”

      Again your interpretation is incorrect.

      The PRA is explicit on what constitutes presidential and personal records. There’s no ambiguity or confusion. The constitution says nothing about the issue other than the president’s general powers. The PRA further clarifies how those powers limited by congress.

  10. Chung’s testimony has provided investigators the first direct link between a senior Chinese government official and illicit foreign contributions that were funneled into Clinton’s 1996 reelection effort. It is the strongest evidence to emerge–in two years of federal investigations–that the highest levels of the Chinese government sought to influence the U.S. election process.

    Key aspects of Chung’s testimony, which has not been made public, have been corroborated by financial records in the United States and Hong Kong, according to law enforcement and other sources.

  11. Aug. 28, 2000 — A little-noticed White House regulation change urged by Silicon Valley will allow the Chinese military to buy some of the most powerful U.S. computers without a government license or security review.

    The move, announced by President Clinton on Aug. 3 and applauded by Vice President Al Gore, is drawing fire from security experts who say the computers could help foreign militaries develop nuclear weapons more quickly, and from a congressman who charges the White House is compromising national security for political profit.

  12. At the same time, I must proclaim that Trump is a Huge Boob. Huge BOOB!
    Why take those documents, Mr. President? How Big of an Idiot do you have to be?

    1. Tom, climb off the ledge. Maybe you should wonder exactly what documents are a problem. Right now, we have not a clue about the information. ONLY the conclusions, of a proven corrupt, DoJ.
      We know the govt has classified information, that is a design of a Nuclear bomb. That sounds like it should be classified, except the same is available in college text books. You are in a twist about what a corrupt DoJ is telling you. This after 6 years of RUSSIA!

        1. “YOU don’t have a clue.”

          You keep making that accusation, sometimes using the exact same words. You have a problem. No one believes your deceit or lies. No one wants to hear how they didn’t read your link because most of the time and how it relates to everything else.

          You have a unipolar mind, and what you say is known throughout the blog as bullsh!t. .

    2. HUGE BOOB!

      Prosecuting Real President Donald J. Trump for inane and frivolous process crimes related to an illegal, unconstitutional, false and fraudulent case of prosecutorial misconduct alleging the mishandling of material that only President Trump, exclusively, had the executive Power to classify, declassify and archive is a HUGE BOOB!

      The executive Power, the whole executive Power, and nothing but the executive Power, so help you God.

      Article 1, Section 1

      The executive Power shall be vested in a President of the United States of America.

  13. Jack Smith is no stranger to getting his ass kicked in court. It will be nice see him to meet the same fate in the Trump case.

    1. Sandy Berger, stole, STOLE, classified documents for Clinton which resulted in a light plea. Berger, who stuffed classified documents in his clothes to remove them from a secure facility, was allowed to plead to a misdemeanor, received two years’ probation and was given only a three-year suspension – not a permanent revocation – of his security clearance.

      Yet, Asia Janay Lavarello, a former civilian employee of the Defense Department, was recently sentenced to three months in prison. That was on on one count of mishandling such material, and Laverello pleaded guilty.

      On May 9, 1996, President Clinton refused to turn over additional documents related to the matter, claiming executive privilege. House committee chair Clinger threatened a contempt of Congress resolution against the president, and the White House partially backed down on May 30, surrendering 1,000 of the 3,000 documents the committee asked for.

      Left-wing opponents of America gave Clinton a pass when he lied to the world, thereby falsely denying he was responsible for the Rwandan Holocaust.

  14. What If Both Trump and His Prosecutors Are Guilty?
    ~ Alan Dershowitz

    The most intriguing question—legal, political, and moral—about the Trump indictment can best be understood through the vehicle of several hypotheticals: What if a white Southern prosecutor announced that he would only investigate crimes committed by blacks; he then devoted all of his resources to looking for black crimes and none to white crimes; as a result he uncovered evidence of a crime committed by a black citizen.

  15. Let’s assume that a White cop decides to give breathalyzer tests only to Black drivers. And let’s assume that cop ends up arresting many Black drivers whose blood alcohol content is clearly over the legal limit, say, 0.12%.

    Every one of those arrests will be thrown out of court, either at the outset or on appeal.

    It won’t matter if what the drivers did was illegal. The court will focus on the fact that what the cop did was illegal.

    1. So What ! That’s the way it is here, if you don’t like it, Hit the Road Jack. There is plenty of room in other countries.
      We like it here, and We intend to keep it that way, so get lost.

      1. I agree 100%.

        The United States Constitution requires equal protection under the law,

        Any case based on an investigation by a cop who has targeted a specific group or a specific individual and turned a blind eye to serious infractions, similar or not, committed by other specific groups or other specific individuals should be tossed out of court.

        Let’s hope the judge in the Trump case adheres to the Constitution and focuses on the fact that what the FBI did was illegal. The FBI targeted Trump in 2016 and spent seven years looking for crimes he may have committed while turning a blind eye to serious infractions committed by Democrats.

    2. That’s not what’s happening here.

      Trump’s lawyers will move for the case to be dismissed, and Trump-appointed judge Cannon will deny the motion.

          1. That is probably correct though most sensible people know the case should never have been made.

    3. There!

      He said it!

      Biden and Garland let Hillary, Biden, Pence and Obama (pseudonymous e-mail) go and they arrested Trump, all with respect to the same crime (Trump’s was not a crime, he holds all executive power exclusively).

      What’s good for the goose is good for the gander, me thinks.

      What is this IMPEACHMENT 4.0?

      No rational, impartial and competent court in any corner of this universe could let this travesty proceed.

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