Below is my column in the Daily Beast on the use of the Espionage Act against former president Donald Trump in the federal prosecution by Special Counsel Jack Smith. The statute is currently being used against Julian Assange and has a long and troubling history.
Here is the column:
“May God have mercy on them, for they need expect none from an outraged people and an avenging government.” Those were the words from Attorney General Charles Gregory in November 1917, when Congress enacted the Espionage Act, the very act now being used to prosecute former president Donald Trump.
Many of us in the free speech community have long denounced the Espionage Act, which was passed to crackdown on political dissidents, particularly those opposed to World War I.
In a forthcoming book, I explore the checkered history of this Act where thousands were arrested for political speech. In an age of rage, the Espionage Act is the government’s favorite weapon to use against its critics.
The Act often seems like the last refuge of the government when it lacks any other means to punish targeted persons. This includes the continued prosecution of Julian Assange for publishing classified information, an act that newspapers have regularly done throughout history to expose government lies and abuses.
In a curious way, the charges against Trump are welcomed as another opportunity for the courts to look at this insidious law. That need existed long before the raid on Mar-a-Lago.
For years, I have expressed reservations about criminal allegations raised against Trump, including the dubious prosecution by Manhattan District Attorney Alvin Bragg. However, even before the appointment of Special Counsel Jack Smith, I also stated that the real threat to Trump would come at Mar-a-Lago.
The Trump indictment hit as expected: hard and below the waterline. It includes an audiotape that portrays Trump pointing to a document that he says is a classified attack plan on Iran. In contradiction to his public claims, Trump admits that he did not declassify the document and thus could not show it to two guests. There are also pictures of documents stacked around a toilet—succeeding in matching the image of President Joe Biden storing documents next to his Corvette in his garage.
Thirty-one of the 37 counts fall under the Espionage Act, which criminalizes allegations that require a showing—under 18 U.S. Code § 793—that someone “having unauthorized possession of, access to, or control over any document … relating to the national defense” “willfully retain[ed] the same and fail[ed] to deliver it to the officer or employee of the United States entitled to receive it.”
The pictures in the indictment are clearly designed to drive home the gross mishandling of documents to the public. No one is seriously going to argue that storing documents in a ballroom or next to a commode are good retention practices.
The law references an intent either to harm the national security of the U.S. or benefit a foreign power. No one is suggesting that harm actually occurred or that Trump intended to cause such harm. However, the government is proceeding under specific provisions making mishandling (and the refusal to turn over documents) a crime. That is the harm that the government will argue.
The indictment may have revealed the motive that the government believes is behind the inexplicable refusal of Trump to turn over these documents: vanity. Trump is portrayed as showing the Iran attack documents like a trophy. That is not a great fit with the Espionage Act.
The government can read Trump’s alleged words: “I don’t want anybody looking” and “I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes.” The prosecutors may use these scenes to portray Trump like a Captain Queeg or a Gollum, jealously protecting his treasure.
However, for most citizens, retaining documents for vanity does not merit charges under an espionage (or any criminal) law, particularly if there is no showing of actual harm to national security.
The use of the Espionage Act avoided basing the case entirely on false statements or another provision—under 18 U.S. Code § 1924—that prohibits unauthorized removal and retention of classified information. That statute, however, would have put debates over classification authority that Smith clearly wanted to avoid.
The problem for Trump is that, even if the Espionage Act attack works in a challenge, it would leave six counts. That includes three counts on withholding or concealing documents in a federal investigation; two counts on false statements, and one count on conspiracy to obstruct justice.
At the end of the day, even if the government was wrong on the Espionage Act, you are not allowed to obstruct or lie to federal investigators.
In adding the 31 Espionage Act counts, the Justice Department was engaging in a familiar tactic to those of us who have handled national security and criminal cases on the defense side. It “count stacked” to try to get the jury to, at a minimum, compromise in giving it convictions on some of these counts.
In some ways, knocking out the 31 Espionage Act claims could produce a cleaner case for the jury and the country. It might also allow a court to rein in on this long-abused statute. It may even get the Congress to reconsider the mistake that it made in 1917 — and replicated in later years.
That is why the Trump indictment is historic, but it is also history repeating itself with the government reaching for this dangerously all-purpose statute.
Multiple non-spies have received prison sentences under Espionage Act provision Trump is charged with violating
https://www.cnn.com/2023/06/15/politics/fact-check-espionage-act-trump-willful-retention-prison/index.html
just guessing the plea dealed a light sentence. Not having the vig to go to SCOTUS
If you look at this CNN article, it is notable that all of the cases date after 2017. The law went into effect in 1917. It appears that the federal government, after Obama’s term in office, decided to increase the application of the law,
It’s not presented as an exhaustive list. Maybe they only looked for examples in the last few years.
Most everyone knows I’m no Trump fan or supporter, but I am having a hard time seeing how this is not a sitting President and his party openly misusing the Justice Dept to prosecute their political opponent.
I get it you don’t lie to the FBI etc and I get it he “showed off” some documents. But I also get it that Biden had them in his bedroom closet, his garage, his car, …hell I heard they found some at the Mall.
Seriously I am saying this ain’t the first time and while there may be differences are those differences enough to drag a former US president into court and threaten him with jail time? Especially when he is running for President again?
How is this NOT the current President using his power (or his party and cabinet, after all he doesn’t seem capable of anything much these days, dementia is clearly setting in, not being critical just being observant) but how is this not political misuse of governmental powers to silence and imprison the opposition party?
You do understand, this is how Hitler got going right? I mean not at first, but once he was appointed Chancellor he immediately set out to misuse existing Weimar laws to arrest and imprison the opposition party leaders and his opponents.
I get your arguments on on the nuances between the two cases but they seem pedantic at best. Let me ask the question another way.
If this were any OTHER President, would they be doing such a singular thing? A thing that’s never been done before?
Over this minutia?
Would they do this if it were anyone else?
And if not, then how is this not the current administration arresting and imprisoning their political opponent?
Biden had nothing to do with the indictment. This is not Biden using the DOJ to do anything.
And yes, those differences are obstruction and willful retention, in contrast to Pence and Biden, who contacted the FBI to return the documents and had the FBI carry out additional searches without need for a search warrant. Trump purposefully had Nauta move boxes around to prevent some of the documents from being returned.
Biden had nothing to do with the indictment.
The President of the United States was never briefed on filing charges against past President, that has filed all the paperwork to run against the sitting President, less than 18 months in the future?
That whole “the buck stops here” credo does not apply to the sitting President? He Is the Chief Law Enforcement Officer of the United
States. Not being involved is treason.
“Not being involved is treason.”
LOL.
Ha Ha. It is idiocy to believe Biden did not approve of every step in this.
Remember, Biden was present for every White House Briefing during the spying on a Presidential campaign, transition team, and Presidency.
Believe whatever you want, but believing it doesn’t make it true, and not being involved isn’t treason. Sounds like you don’t understand what treason is and is not.
To whomever is hiding behind the anonymous handle.
Unless you’re Jeff Zients then there is no way you could possibly know that Biden wasn’t involved with this in any way, or that any of his “handlers” weren’t. Its just too glaring a likelihood to ignore.
Either way its his administration going after his political opponent in an upcoming election and that is fact. To conclude its not politically motivated without evidence is untenable.
On face value alone it reeks of a Hitler-esque purging of the political opposition.
Unless he was selling the damn things to the Russians then this prosecution seems pedantic at best.
At worst, it feels like a political takeover.
My guess is its somewhere in between.
A corrupt act being perpetrated with the intention of keeping our attention on Trump and off the fleecing of America via the pandemic and the Ukraine, as well as keeping Americans at each others throat by rallying support for Trump by not only his followers but by those who wouldn’t normally support him, like me but who see this prosecution for what it is. While their bullying won’t rally me to the point of voting for him it certainly will do that for some fence sitters, … and that keeps our choices for President where “they” want it.
Between two corporate darlings who keep the crisis money’s flowing.
LOL that you think Biden has “handlers.”
LOL that you think he doesn’t.
“Biden had nothing to do with the indictment. This is not Biden using the DOJ to do anything.”
BS.
His AG. His infamy.
Yes, it’s Biden’s AG. That still doesn’t imply that Biden was involved in the decision to indict.
Once Trump got a subpoena, his willful non-compliance is a real problem. It looks like he treated it as a bargaining situation. For example, I’m not going to pay you for services rendered because you did a lousy job with the light fixtures. If you don’t like it, go to court. He’s about to find out that is not the right paradigm by which to respond to a subpoena for government property. The Presidential Records Act people are using as a defense notwithstanding.
👍
The statute uses the phrase “willfully retain[ed] the same and fail[ed] to deliver it to the officer or employee of the United States entitled to receive it.” Who was THE officer or employee entitled to receive the various documents in question? Certainly not NARA, which did not exist in 1917.
Young Joe Biden
*he was working for Woodrow Wilson
“The problem for Trump is that, even if the Espionage Act attack works in a challenge, it would leave six counts. That includes three counts on withholding or concealing documents in a federal investigation; two counts on false statements, and one count on conspiracy to obstruct justice.”
This concept of being able to retain process crimes without the main crime to which they are linked creates fuzzy, sloppy, absurd concepts ripe for governmental abuse and creating all manner of injustices.
One of the slimiest things you can do in law enforcement, that should never be allowed, is investigate something perfectly legal, and then get the citizen to do something illegal in response to the illegitimate investigation. It happened to Bill Clinton. It happened to General Flynn. A perfectly legal affair. A perfectly legal phone call. I have no idea why we tolerate the idea of government investigating, or the courts allowing as relevant, something for which they have no basis, and charge process crimes in the wake of such illegitimate actions.
Not only should harassment of the citizen cease, but there needs to be charges or at the very least disciplinary action taken against law enforcement. Instead, we allow the opposite. Continued harassment of the citizen and no disciplinary action against law enforcement.
Now if Trump was engaged in illegal activity that was being properly investigated, then fine. These other counts can be added. But if the law he violated is thrown out, then what exactly did he “obstruct?” Too fuzzy and ill thought out.
What must the rest of the world be thinking? Charging a former President (and one running for the office again) on the basis of possessing documents that he had every right to see as President? It’s not like he took money from foreign entities. It just doesn’t pass the smell test, especially given the timing. And I AM NOT a Trumper. Can’t stand him.
What must the rest of the world be thinking when a former POTUS, who cheated his way into office, stole classified documents, refused to reutrn them, even with a subpoena, and forced the DOJ to charge him criminally. He runs free, attacks everyone who doesn’t support him and lies about a nonexistsent “right” to possess classified documents
Seven years of let’s get Trump.
If, against all odds, the DOJ wins this case against Trump, the future of the Democrat Party will not be pretty. What goes around comes around. Corrupt Democrat leaders may want to begin psychologically bracing themselves for some prison time.
The Espionage Act is very interesting.
It should have been used against Hillary, her staff along w many in the WH and Obama’s administration.
Its an issue of how one handled or mishandled classified documents. (In the relevant cases of documents of national security.)
There are reports that Clinton’s server was hacked and owned by the Chinese hackers (government) within weeks of it being set up because there was no security configured.
(It was also found in the logs of a security researcher after the news story broke.)
That would have been a more appropriate example. And then there’s Biden which is worse.
His pilfered docs were stored in a publicly accessible office closet. Not a private residence w secret service around.
The only damning thing is that Trump is caught on tape saying things he shouldn’t have.
Even then, he has an excellent defense due to the Presidential Records Act.
Note: Trump is Trump. He’s not some pristine lily white petite innocent fleur. But the charging of Trump is a joke.
If Kamel Toe was a real contender for the role of POTUS, Joe would have been impeached long ago.
-G
Libs know the right has no bite. Piling on dozens of charges, is meant to warn any other #nonlibs or former libs, that the consequences for getting in Biden’s crosshairs, will be ruthless. I thank the Lord, that garland is not a #supreme. Although the libs want to stack the Supreme Court, into an arm of the dnc.
@Turley,
You are mistaken about Assange and the use of the Espionage Act.
Because of the NYT vs United States aka Ellsberg Papers, the publishing of docs by a news organization would provide some sort of shield for Assange since several journalists and news organizations have recognized Wikileaks as a journalistic effort. While that’s debatable, its enough where the US wouldn’t risk charging him.
What you and many others who haven’t been following the whole Manning story for over the past decade now…
During Manning’s Article 32 hearings, there was evidence that Assange assisted Manning in the actual theft. (Manning’s own statements to a third party, bragging about it…)
This did not come up at Manning’s court martial because Manning pleaded guilty to those charges so that the evidence was never heard. None the less, the evidence exists and if true… Assange would be guilty of espionage for the actual theft and not for the publication.
This is why Assange who helped to raise funds to defend Manning, used some if not all of those funds to hire a defense attorney to shadow Manning’s trial.
Assange was/is a pratt and the whole Sweden thing was really about rape. Manning knew that if he faced a trial and was convicted, it wasn’t the year or two in a Swedish prison that was an issue, but the travel restrictions along w being sent back to Australia. There the US would get a quick and simple extradition to pull him in for his part in Manning’s theft. Also keep in mind. In Australia as a kid, he was caught hacking the US Government systems.
The point is that Assange is a bad example when compared to Trump.
-G
Thats quiet a story, I find no relevence to the point Turly was making
@Iowan,
He was talking about Assange being extradited because he published the wikileaks stuff.
Not because he was part of the theft.
BTW Ellsberg died today at 92.
But I digress.
This is what Turley wrote:
The Act often seems like the last refuge of the government when it lacks any other means to punish targeted persons. This includes the continued prosecution of Julian Assange for publishing classified information, an act that newspapers have regularly done throughout history to expose government lies and abuses.
-=-
Again one of the issues of Manning’s Article 32 hearing was Assange assisting in the theft.
I don’t know what was in the charges or extradition request but I’m going to bet that it was in reference to the theft not publication.
-G
Again one of the issues of Manning’s Article 32 hearing was Assange assisting in the theft.
But thats not why he is being held
@Iowan,
He’s currently in UK prison over bail jumping and he’s being held on an extradition warrant to the US.
Again, they could charge him over the dissemination, but that’s where the 1971 ‘Ellsberg’ decision. (NYT vs United States) may cause a pause.
Its the theft that will come back to haunt him.
If we want to restore faith in America’s government institutions, shouldn’t laws like the “Espionage Act of 1917” be exclusively focused on people trying to harm America’s constitutional democratic republic? And not be used to punish people trying to protect America’s democratic constitutional republic! This is George Orwell “1984” double-speak, name something the exact opposite of what it really is (ex: name the War Department the Department of Peace, etc).
All governing officials, including prosecutors, swear an Oath of Office to uphold our “constitutional democratic republic” as a condition of holding governing authority over citizens. Stop using this law on journalists, legal whistleblowing or those trying to protect America.
Since 1917, there seems to be strong evidence that the Espionage Act has been used primarily against Americans trying to protect America with no intent to harm the nation. No wonder many Americans have lost faith in these institutions.
The U.S. Supreme Court could be real heroes here by ruling that 90% of Espionage Act indictments, since 1917, were and are blatantly unconstitutional. The EA was only intended for enemies trying to harm the United States.
Jonathan: I agree. “The Espionage Act is the government’s favorite weapon to use against its critics”–like Julian Assange. I think it is long past due for needed changes to the Act to make sure is is applied only to those who act on behalf of a foreign power. But it is an error to conflate the Espionage Act charges in the Jack Smith indictment to the 34-count charges by Alvin Bragg. Those were brought under NY state law.
What you don’t mention is the controversy over Judge Eileen Cannon–who is the presiding judge over the Miami case. Cannon has some serious conflicts. She was appointed by Trump in the last months of his administration. She is a member of the conservative Federalist Society who selected all of Trump’s judicial appointments. In addition, Cannon presided over Trump’s civil suit trying to keep the FBI/DOJ from using the docs recovered at Mar-a-Lago in their criminal investigation. Cannon sided with Trump and, inan effort to slow walk the investigation, ordered a special master to review all the docs. The DOJ appealed Cannon’s ruling to the 11th Circuit Court of Appeals that slapped down her unlawful interference in an ongoing criminal investigation.
The big Q is whether Cannon will try to do the same thing in the Miami case. Will she try to run interference for Trump. Or, because of her previous conflicts, will she voluntarily recuse? If Jack asks Cannon to recuse will she refuse? What will Smith do in that case?
An interesting aspect of the Miami indictment is that it doesn’t mention Bedminster–where Trump kept many of the classified docs. Many legal experts say Smith has a Plan B if Cannon refuses to recuse. He could file similar charges against Trump in a New Jersey federal court. That would go around any attempts by Cannon to slow walk or interfere in the Miami case on behalf of Trump.
As you mention, even if Trump is able to avoid charges under the Espionage Act–either in pretrial motions or at trial–he still faces the serious charges of false statements and obstruction. Those charges involve long prison time– and are pretty straight forward because they are factually impossible to refute.
Look at the bright side. The case is in Florida, with the same(Trump appointing) judge presiding as the earlier (scant chance Cannon recusal, she’s following standard docket procedures for related cases.
None of those things are conflicts, you idiot.
Dennis: thank you. Here’s more on Cannon: she has actually presided as a judge at a total of four (4) trials: actual cumulative bench time is14 hours. Reporters who covered the E. Jean Carroll case accrued more courtroom trial time than she has. This would be a complex case for any judge, with statutory interpretation and evidentiary issues that demand experience and far more skill than Cannon has. She’s clearly in over her head, plus she has established her bias in favor of Trump when the documents were seized. The standard for judicial recusal on the basis of questions of impartiality is low: 28 U.S. Code § 455 – Disqualification of justice, judge, or magistrate judge. Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. ANY reasonable person would question Cannon’s impartiality, given her prior rulings, for which she was benchslapped by the 11th Circuit, her lack of experience and the fact that Trump appointed her. Note the mandatory language ” SHALL disqualify”. Therefore, Cannon should recuse on the basis of inexperience and questions of impartiality.
There is reporting that one of Trump’s lawyers tried to work out a deal with the DOJ before the indictment, but Trump was having none of it. His ego requires attention, the opportunity to trash-talk people and take center stage. And, contrary to Turley’s efforts to downplay Trump’s theft and his indictment, there is NO way to know whether “actual harm” to America’s interests has resulted from Trump’s recklessness and arrogance, because there’s no way to know whether a janitor, housekeeper, guest of a member or other person could have taken, viewed, copied or otherwise related the contents of sensitive materials to the wrong people. Turley’s effort to equate the boxes in Joe Biden’s garage containing only a “small number” of documents marked classified to Trump’s deliberate theft and reckless handling of classified materials he claims he owns and can show to anyone he wants, is really lame. The number of documents with classified markings is listed as “small”, plus they are much older than the papers Trump stole–from 1973 to 2016.. All sorts of people didn’t regularly have access to Biden’s home or his office. After the news of the Trump theft, Biden directed that all his papers be searched, and when a small number of documents listed as “classified” were found, he immediately notified the NARA and FBI. On the other hand, hundreds of our classified documents were stored in a bathroom, on the stage in a ballroom, Trump’s office and in a storage closet. The contents of some had spilled out on the floor–is this because someone had been going through that box? There is no comparison, no matter how much Fox pays Turley to try to downplay Trump’s conduct and exaggerate Biden’s–there’s still no comparison.
Cannon “has actually presided as a judge at a total of four (4) trials: actual cumulative bench time is14 hours.”
Have the decency and honesty to portray accurately a person’s CV.
She was for 7 years a federal prosecutor in the *major crimes* division. As a federal judge she has presided over a lot more than “four” trials.
Empty of ideas and arguments, but full of corruption, this is a typical Leftist smear campaign. If you browse the Leftist media, it’s as if a memo went out: Here are your marching orders. Get Cannon, by any means necessary.
Dear Prof Turley,
If a picture is worth a thousand words, this is pure gold …
“There are also pictures of documents stacked around a toilet—succeeding in matching the image of President Joe Biden storing documents next to his Corvette in his garage.”
Well, if I had to choose, if I were sworn-in and forced to choose, the documents stacked around the toilet seems considerably more SCIF-like than storing them next to a Corvette in the garage. My toilet has its own library. .. for serious reading.
What’s in the documents? All I see are boxes of papers.
All my Fav-hero whistleblowers are charged under the Espionage Act. No official order, procedure or law is valid if it’s illegal, immoral and unconstitutional. Advantage Trump.
*’duty, honor, country’ ~ Gen. Douglas McArthur, West Point, 12 May, 1962.
Re: what’s in the documents, here’s the best discussion I’ve seen: https://www.lawfareblog.com/what-are-classified-documents-trump-indictment
It’s irrelevant that you only see boxes (though at least one photo shows a partially uncovered document with the header redacted). Copies of the actual documents will be shared with the defense counsel after they obtain security clearances.
And so far, no court has ruled the Espionage Act “illegal, immoral and unconstitutional,” so no, there is no advantage Trump.
Poor anon.
There is an advantage to Trump.
Its called the Presidential Records Act.
Along w the Bill Clinton defense.
The POTUS gets to determine what is personal records and what is not.
So if this key law holds true (Barrett ruled on it btw…) then there is nothing here.
The raid would be illegal because the National Archives had not right to anything, and no obstruction because Trump was correct in withholding those docs.
That’s the advantage. Hence the Espionage Act, which again makes things interesting because if the core impetus is wrong, could you even apply the espionage act?
(Here’s again the issue of Clinton’s tapes. ) [Bill Clinton]
You may not like Trump, but the law could protect him…
-G
You couldn’t be more wrong. Trump does not “get to decide” what papers are his property. From CNN:
Washington
CNN
—
Former president and current presidential candidate Donald Trump continues to inaccurately describe the Presidential Records Act.
In a Fox interview that aired on Monday, Trump criticized the FBI for searching his Mar-a-Lago resort in August for presidential documents and argued he should have been allowed to engage in further discussions with the government over these records. In fact, Trump said, the “very specific” Presidential Records Act actually requires extended talks with the National Archives and Records Administration.
“It says you are going to discuss the documents,” Trump said. “You discuss everything – not only docu– everything – about what’s going in NARA, et cetera, et cetera. You’re gonna discuss it. You will talk, talk, talk. And if you can’t come to an agreement, you’re gonna continue to talk.”
Trump made a similar claim in an interview in January, claiming then that “the Presidential Records Act is – I’m supposed to negotiate, I’m supposed to deal.”
Facts First: Trump’s claims are false. The Presidential Records Act says that, the moment a president leaves office, NARA gets custody and control of all presidential records from his administration. Nothing in the act says there should be prolonged “talk” or a negotiated “agreement” between a former president and NARA over a former president’s return of presidential documents – much less that there should have been a months-long battle after NARA first contacted Trump’s team in 2021 to try to get some of the records that had not been handed over at the end of his presidency.
Jason R. Baron, former director of litigation at NARA, told CNN in an email on Tuesday: “The former President is simply wrong as a matter of law. As of noon on January 20, 2021, when President Biden took office, all presidential records of the Trump Administration came into the legal custody of the Archivist of the United States. Full stop. That means no presidential records ever should have been transferred to Mar-a-Lago, and there was no further talking or negotiating to be had.”
Timothy Naftali, a CNN presidential historian, New York University professor and former director of the Richard Nixon presidential library, described Trump’s claim as “nonsense” and said the former president’s description of the Presidential Records Act is “a matter of fantasy,” concocted to allow Trump to “pretend that he’s a victim.”
The act, Naftali said in a Tuesday interview, makes clear that documents Trump had at Mar-a-Lago are presidential records that legally belong to the public and are legally required to be in NARA’s custody. The act provides “no room for debates and discussions between presidential advisors and the National Archives at the end a presidency” about such records, Naftali said.
What the Presidential Records Act says
The key sentence from the Presidential Records Act is unequivocal: “Upon the conclusion of a President’s term of office, or if a President serves consecutive terms upon the conclusion of the last term, the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.”
Margaret Kwoka, a law professor at The Ohio State University and an expert on information law, said in a Tuesday email: “The PRA is not a mandate for a talk or a negotiation with the National Archives, but rather a law that defines presidential records to be public records, not private ones. Presidents are required to maintain presidential records under the law, and the Archivist takes automatic custody of the records at the end of the President’s term in office. The PRA’s requirements are in place precisely to avoid allowing presidents to have discretion over the retention, preservation, and access to presidential records.”
Shannon Bow O’Brien, a professor in the University of Texas at Austin’s government department, says it’s possible Trump has incorrectly latched onto sections of the Presidential Records Act that do not actually apply to his situation.
One section of the law lays out a process of communication between a sitting president and NARA’s chief archivist for instances in which the president wants to dispose of personal records, which are defined as records of “a purely private or nonpublic character” unrelated to the president’s official duties. Another section of the law allows a president, before leaving office, to restrict access to some records (including personnel files and medical files, advice from aides, trade secrets and certain defense information) for up to 12 years – though these records must still be in NARA custody during the temporary restricted period.
Neither of these sections of the act is relevant to Trump’s case, in which, prior to the FBI search in August: 1) an ex-president 2) possessed indisputably official records 3) at his own property, outside of NARA custody and 4) did not return these records even upon repeated NARA requests and a Justice Department subpoena. No part of the act suggests the federal government was supposed to continue engaging in “talk, talk, talk” with Trump in these circumstances.
“I guess the most polite thing,” O’Brien said, “would be: the former president is deeply confused and fundamentally does not understand.”
Gigi, the PRA is a civil statute. There is no criminal penalties, There is no enforcement power.
Iowan 2: But Trump and alt-right media keep citing the PRA for the notion that Trump had possessory rights in the documents. He didn’t, and that’s where the criminal statutes come into play.
He wasn’t charged with violating the PRA. The PRA isn’t even mentioned in the indictment, for good reason, as the PRA is irrelevant here.
The Govt wants it to be irrelevant. It really messes with the entire predicate of search warrant.
Hard to imagine a past President, and papers that followed him out of the White House, has nothing to do with the PRA
It doesn’t “mess with” anything. Read the indictment.
Poor GiGI,
Its not me.
Its what Justice Barret said when she heard the Clinton case a while back.
The POTUS decides which documents are personal. End of story.
Everything Trump had he could claim as personal. That would end this.
Now IANAL, but Trump’s legal team could raise this in a motion to dismiss at the start of it.
If it fails they go to trial. If not… Trump is free to do what he wants.
Biden on the other hand… wasn’t POTUS. So he couldn’t claim it.
He could theoretically pardon himself and Hunter… but still he’s in a bit of hurt over his classified mess.
-G
I doubt you’ve read the PRA or ABJ’s ruling in their entirety. Neither one gives an advantage to Trump, much less does either say that “The POTUS gets to determine what is personal records and what is not.” BTW, ABJ is Amy Berman Jackson, a different person than Amy Coney Barrett.
Good catch on the ABJ and not ACB.
Doesn’t matter.
The fact is that if Trump claims they are his personal records… that’s it.
Is it an apples to apples comparison? No. But it doesn’t have to be.
Now the judge could say no… and it would be grounds for appeal.
Trump is sitting pretty.
Biden, not so much.
But of course many want Trump to not run because there are better GOP candidates.
“The fact is that if Trump claims they are his personal records… that’s it.”
a) That’s not what ABJ ruled. Again: have you READ the ruling?
b) It’s a DC district court ruling and has no precedential impact in SDFL.
The decision is obviously “precedent” in the normal definition of the word. Miriam Webster defines the term as follows:
1. : an earlier occurrence of something similar
2 a: something done or said that may serve as an example or rule to authorize or justify a subsequent act of the same or an analogous kind
a verdict that had no precedent
b the convention established by such a precedent or by long practice
3: a person or thing that serves as a model.
https://www.merriam-webster.com/dictionary/precedent#:~:text=A%20precedent%20is%20something%20that,case%20they're%20actually%20deciding.
It is not binding on another court in any circuit, but it will be looked at as a guide, since it has considered some of the issues involved here..
Except that it hasn’t considered the issues involved here. Again: many of these documents are covered by the Federal Records Act, not the PRA, and in no context could they be considered “personal” as defined by the PRA.
Maybe you’ll find Daniel’s explanation better:
https://jonathanturley.org/2023/06/15/has-anyone-seen-this-man-biden-special-counsel-robert-hur-appears-to-have-vanished/comment-page-3/#comment-2296712
From the opinion:
“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.”
Unlike NARA, the FBI **does** have the right to obtain a search warrant and the seize government records covered by the warrant, and it did so. It’s wholly irrelevant to the search warrant whether the classified materials it seized were covered by the PRA versus the FRA.
From the opinion:
“The PRA distinguishes Presidential records from ‘personal records,’ defining personal records as ‘all documentary materials, or any reasonably segregable portion thereof, 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.’ Id. § 2201(3). The PRA provides that ‘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 Governmental business’ should be treated as personal records. … The only reference in the entire statute to the designation of records as personal versus Presidential also calls for the decision to be made by the executive, and to be made during, and not after, the presidency.”
But these classified documents clearly do relate to the carrying out of the President’s official duties. They were prepared for transacting government business. In no way do they meet the definition of personal records. And Trump has not presented any evidence that he designated them as personal records while he was still in office.
From the opinion:
“the Court has seriously doubts about whether the former President’s retention of the audiotapes as personal is a matter that is subject to judicial review. But the Court need not decide this question because whether judicial review is available or not, the relief that plaintiff seeks – that the Archivist assume “custody and control” of the audiotapes – is not available under the PRA.” (emphasis added)
The court did not decide whether the Clinton tapes were or were not personal records.
Trump is clearly free to raise this case in his argument to the court, but the Special Counsel is going to explain why it’s irrelevant to THIS case involving national defense information. He’ll point out that the JW v NARA case was dismissed for lack of redressability and that Trump is misrepresenting it.
The term “Presidential records” means documentary materials, or any reasonably segregable portion thereof, created or received by the President … or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.
Those documents in question were possessions of the White House/President. From that fact you get a binary choice.
From the opinion you quote
“NARA does not have the authority to designate materials as “Presidential records,”
Note the ruling about power. The court clearly states the NARA lacks constitutional power to make a determination.
The Prosecution can try to claim the documents are not PRA, but the PRA says different.
So we have two things. the records are PRA…..and the NARA lacks constitutional power assert a position. ie, the NARA is bound by Presidential determination.
Keep reading.
“The term “Presidential records” … (B) does not include any documentary materials that are (i) official records of an agency (as defined in section 552(e) of title 5, United States Code); (ii) personal records; (iii) stocks of publications and stationery; or (iv) extra copies of documents produced only for convenience of reference, when such copies are clearly so identified.”
“The court clearly states the NARA lacks constitutional power to make a determination. ”
That doesn’t mean that the Court lacks the constitutional power to make a determination.
“The Prosecution can try to claim the documents are not PRA, but the PRA says different. ”
It doesn’t. The PRA notes that agency records are not Presidential records. Moreover, even if some (not all) of the records are Presidential records, they’re still national defense information, and they belong to the government, not the former President.
That doesn’t mean that the Court lacks the constitutional power to make a determination.
The agency created to administer the PRA lacks the Power. Exactly where would the Judiciary’s power be delegated from?
From the Constitution.
The boxes are covered and neatly stacked around the toilet for easy access, in Lawfare photograph. What caught my eye was the crystal chandelier and gold hardware .. . cheap plating, I bet.
I’ve already perused the Lawfare article, and found it sorely lacking. It’s just a regurgitation of the indictment, indexed, with the author waxing-on about stuff he knows nothing about. Like you, and you are not alone.
>”Copies of the actual documents will be shared with the defense counsel after they obtain security clearances.”
That’s nice. Will copies of the actual documents be shared with the Jury? Will they need TS security clearances? If not, how will they be able to make an informed decision?
>”And so far, no court has ruled the Espionage Act “illegal, immoral and unconstitutional,” so no, there is no advantage Trump.”
Things change. Its only been a 106 years we’ve suffered under this unchallenged archaic abomination. I only meant Trump was in better company now that he has been charged under the Espionage Act too. .. and, lets face it, judging by the company he keeps, he’s a very poor judge of character.
*Snowden for President 2024 ‘It’s the Only Way to be Sure’
“with the author waxing-on about stuff he knows nothing about.”
That’s false. This is his area of expertise.
“Will copies of the actual documents be shared with the Jury?”
Perhaps redacted ones. We’ll have to wait and see.
“If not, how will they be able to make an informed decision?”
Why on earth do you believe that the full contents are necessary to determining whether Trump broke the law?
“judging by the company he keeps, he’s a very poor judge of character.”
Glad we can agree on something.
>”That’s false. This is his area of expertise.”
He’s a ex ‘cyber expert’ for GCHQ (British FBI) with a long tongue and a green card. Which hardly qualifies him as an expert on U.S. constitution, law, politics, culture, thought or habit.
Still, maybe I was a little harsh. He must know something. There’s no such thing as knowing ‘nothing’. He just doesn’t know anything about what’s in the documents – unless you’re suggesting SC Smith has shared that classified information with him?
>”Why on earth do you believe that the full contents are necessary to determining whether Trump broke the law?”
For the same reason one needs to read the book to understand what’s in it. And even then there’s no guarantee.
Lets suppose, for the sake of argument, that VP Dick Cheney ‘took the gloves off’ and we ‘tortured some folks’ (h/t Obama). And classified it all TS/NOFORN EYES ONLY BURN AFTER READING.
No law is valid if it’s illegal, immoral and unconstitutional.
*do you know where the laptop is, or not?
“He just doesn’t know anything about what’s in the documents”
He made educated guesses based on the classifications and dates and his related knowledge. As I said, it’s the best discussion I’ve seen. If YOU have seen a better discussion, link to it.
“For the same reason one needs to read the book to understand what’s in it.”
But the jury doesn’t have to understand what’s in the documents in any detail. They only have to understand *whether* the documents are national defense information, and that can likely be determined with redactions and testimony. Just like you can know that a book is a mystery novel without reading it (e.g., by reading a review).
>”it’s the best discussion I’ve seen”
I’m not surprised. Thought it was a poor discussion, hardly a discussion at all. Turley’s blog is more nuanced, insightful, informative, rational, reasonable and authoritative … but he’s no expert (according to Debbie Wasserman Shultz).
>”But the jury doesn’t have to understand what’s in the documents in any detail.”
Now you’re just being silly. You can’t judge a book, or an indictment, by its cover.
The classified documents could authorize torture, rendition, assassinations, collateral damage, civil rights abuses, economic pillage, war and rumors of war. And often [redacted].
>”They only have to understand *whether* the documents are national defense information,”
We must be talking cross-purposes. The national defense information of no man can be conditioned by anyone but himself.
*National Defense Information (NDI) refers to defense, industrial, and military emergency energy requirements relative to national safety, welfare and the economy, relating to foreign military or economic actions.
“Turley’s blog is more nuanced, insightful, informative, rational, reasonable and authoritative”
ROFL. Turley has never acknowledged any of the classifications, much less tried to discuss what each of the 31 documents are. Again: If YOU have seen a better discussion, link to it.
Jacob I can’t find that Bric-a-brac we packed, didn’t you pack it? No Sara the moving company did? Well I can’t find it? Just look in the boxes and you should come across it. You expect me to rummage through all those boxes? Why yes, you’re responsible for that Bric-a-brac. Does this scenario sound familiar? Who packed all those boxes in January 2020? Who labeled the boxes? Did they mark them as panties, ties, newspaper clippings, confidential, secret, top secret? Did those that packed the boxes have clearance to pack secret, confidential and top secret? Did they co-mingle belongings, panties, and other stuff with secret documents? It is beyond absurd to believe that any President packed any box to be shipped to their end destination for further review. This whole matter is ‘Much Ado about Nothing’ about nothing indeed, unless the intent was to sway fools. One additional item I’ve observed in the pictures released by the FBI, are we to believe that President Trump or the staff at Mar-Lago would strew files about in the manner pictured, in the LOO none-the-less. Yea Right!!!
Ephesians 4:14 NCV
‘Then we will no longer be babies. We will not be tossed about like a ship that the waves carry one way and then another. We will not be influenced by every new teaching we hear from people who are trying to fool us. They make plans and try any kind of trick to fool people into following the wrong path.’
‘Banana Republic’? Trump Indictment Bad for America, Most Voters Say
https://www.rasmussenreports.com/public_content/politics/biden_administration/banana_republic_trump_indictment_bad_for_america_most_voters_say
It’s the opposite of a banana republic.
https://reason.com/volokh/2023/06/10/against-the-banana-republic-critique-of-indicting-trump/
“It’s the opposite of a banana republic.”
Bootstrapping a civil claim into a criminal one, to kneecap your primary political opponent — that is the definition of banana republic.
Many of these Espionage Act indictments since 1917 seem to fail the “Article VI Test” of the U.S. Constitution. In other words, one could make a strong argument that since 1917, about 90% of indictments using this federal statute violate Article VI of the U.S. Constitution – making 90% blatantly unconstitutional.
Alexander Hamilton (largely designed the American Justice system) in the latter papers of the Federalist Papers basically said “legal precedent” (past court rulings) should usually supersede current court cases UNLESS it was a “constitutional” issue. If it were a constitutional issue “constitutionality” should supersede past precedent (past court cases).
This standard was used to advance women’s rights (now 50% of the U.S. population), interracial marriage, equal marriage rights for LGBT Americans and expanding gun rights in 2008 (“Heller” U.S. Supreme Court decision).
If you use the “Fruit of the Poisonous Tree” legal logic (an unconstitutional foundation taints anything built upon that unconstitutional foundation) and judges suppress (throw out) some things obtained illegally – this gives a different vantage point to people like Snowden or Kiriakou or Drake (threatened with EA prosecution).
For example:
Snowden and Kiriakou claimed that their superiors were disloyal to their Oath of Office and Ronald Reagan’s Torture Treaty. Under Article VI of the U.S. Constitution (ratified in 1789 and the supreme law of the land), it appears the “superiors” were indeed disloyal to their Oath of Office and in violation of international and federal law. Snowden and Kiriakou were following the supreme law of the land since 1789. The “superiors” in the federal government were violating the supreme law of the land.
There is also mitigating evidence, in favor of Snowden and Kiriakou. The George W. Bush Administration systematically disabled internal whistleblower systems inside the federal government, when the superiors started violating their Oath of Office, international law and federal law.
Bottom line: Snowden, Kiriakou and others upheld their Oath of Office loyalty oath – their government superiors did not. When the superiors broke the law, Snowden and Kiriakou “checked & balanced” those disloyal superiors. Most Espionage Act indictments since 1917 should be ruled “unconstitutional” by the U.S. Supreme Court!
As the DOJ prosecution of Trump continues to unfold, so does the outrage of the American people. That outrage cuts across party lines, racial lines, and geographic lines. It’s not just that the authoritarian prosecutors at the DOJ are wrong, they are also immensely unlikeable. The words thuggish, arrogant, and intellectually dishonest only scratch the surface. Don’t be surprised to see America’s support for Trump increase month after month between now and the 2024 election.
I don’t know what bubble you are living in, but the bulk of the US is outraged at what Trump did, not that he is getting prosecuted for it.
I dont know what bubble you are living in, but I just posted a poll from the Rasmussen Reports says you are wrong. The majority think the Biden admin is making the US look like a banana republic.
And they are right.
Rasmussen is consistently unreliable. No one takes their poll results seriously.
So says Gigi despite the fact that the New York Times and Washington Post are far less accurate.
@Sammy: Given the ‘abuses’ committed by certain minions of the ‘Deep and Administrative States’ compiled in Inspector General and Special Investigator reports, e.g., “”a known totally fictious document was created as a weapon for the benefit of a political party, and submitted to the FISA Court as evidence sufficient for that panel to justify their issuing an order enabling the spying on a U.S. citizen. As well, one of these ‘actors’ unlawfully wiped from said citizens’ C.V that he was an agent for the CIA. Moreover, said application for renewal was repeatedly signed by the head of the FBI who knew the evidence was fictitious””. This as well as other ‘acts’, no one has yet been indicted and meaningfully prosecuted. Your comments regarding ‘outrage’ encompass a clearly biased view and opinion of events. Moreover, they suggest that you are supportive of and see justification for those actors’ aforementioned moral and ethical turpitude as do appear others of your ilk,. Perhaps you should consider the totality of same and how they have impacted this nation and its citizenry as a whole in the course of constructing your comments. Your audience is definitely NOT living in a bubble. They are of many persuasions, hold multiple points of views, and the past 8 years are fresh in their memories. .
@Jonathan Turley: RE: “The government can read Trump’s alleged words: “I don’t want anybody looking” and “I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes.” The prosecutors may use these scenes to portray Trump like a Captain Queeg or a Gollum, jealously protecting his treasure” The defense may us these words to portray Trump’s legitimate fears and concerns about ‘the deep State’ searching for evidence of a crime. No ‘Queeg’ paranoia that, given the fact that their ‘posse’ have already pursued and persecuted him incessantly before, during and after his Presidency. Much of said pursuit and persecution characterized by acts of insufferable moral and ethical turpitude committed against him and the citizens of the United States as well, by certain minions of DOJ.FBI, this substantiated in Inspector General and Special Investigator reports, and those of both the House of Representatives and the Senate, by public utterance, and impeachment proceedings, in order to accomplish their agenda. https://www.theguardian.com/us-news/2019/jan/04/democrats-congress-trump-impeach-rashida-tlaib
Curious that Trump is charged under section 793(E) of the Espionage Act that requires proving intent rather than 793(F) that criminalizes mishandling of information regardless of intent.
Years ago there was opinion in the IC that the Espionage Act was like a big club standing in the corner. It was something they could point to to encourage cooperation, but did not want to use. They believed if it got to the Supreme Court it would be found unconstitutional, much like D.C.s gun laws.
Our present situation is reminiscent of Eugene Debs who ran for president in 1920 while imprisoned under the Espionage and Sedition acts. He got the most votes he ever garnered in that campaign from jail. There was campaign literature picturing him in a prison jump suit with his prisoner ID number. He was allowed one political communication a week that was distributed to the media. The incoming president pardoned him….
History has shown that the best way to achieve peace is by vanquishing the warmongers, as was done to Germany and Japan. Talking never results in peace. It is folly to believe that it ever can. Talking wastes time that could be beter spent vanquishing the enemy.