The Federal Persecution of Trump, Part One
A look at the Special Counsel's political indictment of former President Trump
Summary: The investigation of President Trump for allegedly wrongfully retaining documents from his Presidency is a disgraceful political hatchet job initiated by a partisan Federal bureaucrat in the National Archives and pursued by overzealous Federal prosecutors of questionable ethics. The Indictment itself is a blatantly political document containing all manner of irrelevant and impertinent political material having no place in such a document. This article will provide some background on the investigation and break down some of the charges made.
The article: The Special Counsel, Jack Smith, appointed to investigate President Trump succeeded in getting President Trump indicted by a Grand Jury over the handling of his personal and Presidential records. This article, Part One, provides critical background and breaks down the nature of the indictment, the charges, the potential defenses, along with some of the misinformation and propaganda spread about all of the above.
A Word About the National Archivist
The Indictment itself states the investigation into President Trump’s retention of records was initiated following a referral from the National Archives and Records Administration in February 2022. (See pg. 20.) Thereafter, the Indictment alleges the FBI opened a criminal investigation in March 2022, followed by a Grand Jury investigation in April 2022.
During a president’s term tens of thousands of documents are generated by the President himself, his cabinet and staff members. In addition, tens of thousands of additional documents are provided to the President, his cabinet and staff. Under a statutory scheme set up by The Presidential Records Act, these records are categorized by the President or his designated representative as “Presidential Records” or “Personal Records.” (More on this shortly.)
At the end of a president’s term, the outgoing President usually has a host of documents to tend to. Importantly, the National Archives usually assists Presidents with the effort to compile, categorize and transport their personal records at the end of their term. President Trump was the first President since the Presidential Records Act passed who did not receive this assistance. The Western Journal covered this in an article published on June 12, 2023:
Rather than assist President Trump, the National Archivist, a man named David Ferriero, had more of an adversarial relationship with the Trump White House. In fact, this Obama appointee purportedly started the entire investigation. As President Trump left the White House on January 21, 2021, David Ferriero said he remembered “. . . watching the Trumps leave the White House and getting off in the helicopter that day, and someone carrying a white banker box and saying to myself, What the hell's in that box?’”
The NARA then set about to discover what documents were taken to Florida when the Trump Administration ended. After Trump cooperatively produced boxes of documents for the NARA, the NARA made a criminal referral of the matter to the FBI. Thus, this entire investigation from its very inception was questionable, at best, and a set up, at worst. What makes it even worse are the overzealous hacks the United States Department of Justice put in charge of it.
The Overzealous Federal Prosecutors
The Special Prosecutor appointed by the United States Attorney General Merrick Garland is Jack Smith. Jack Smith is the Federal prosecutor who obtained wrongful convictions against a former Republican Governor of Virginia, Robert McConnel, which the United States Supreme Court unanimously overturned. He is the prosecutor who unsuccessfully prosecuted former U.S. Senator and Democrat presidential hopeful John Edwards over questionable campaign finance violations. In addition, troubling claims of prosecutorial misconduct, including alleged media leaks, illegal wiretaps and hiding evidence of innocence dog Smith over his prosecution of former Republican congressman Rick Renzi from Arizona. Jack Smith is the poster child for prosecutorial over-reach. And he is in charge of this critical investigation.
Another one of the top prosecutors on the Special Counsel’s team is Karen Gilbert. Gilbert was formerly chief of the narcotics section of the United States Attorney’s Office in Miami. Gilbert was one of three Assistant US Attorneys whose misconduct in the prosecution of a doctor in Miami resulted in extensive sanctions being imposed by the Court on the USA. Gilbert was “reassigned” from her position as chief of the narcotics section as a result of the episode. The misconduct included getting witnesses to record defense attorneys in violation of DOJ policy, failing to disclose before trial that the witnesses making the recordings were confidential informants for the Government and failing to turn over exculpatory evidence (meaning evidence tending to show a person charged with a crime is innocent) in violation of the law. The truth was only discovered because one of the witnesses mentioned he recorded his discussions with defense counsel during cross examination at trial. (The case is U.S. v. Shaygan for those interested in a deep dive on the prosecutorial misconduct which took place.)
The DOJ is yet to disclose the complete list of personnel handling this case, but the fact the Jack Smith and Karen Gilbert are leading the charge against President Trump tells us clearly the DOJ is not interested even the appearance of fairness, even-handedness and ethics, despite AG Garland’s meaningless lip service to the contrary.
The Speaking Indictment
This indictment is a purely political document. It consists of nearly thirty pages of superfluous, political diatribe preceding the charges. It is littered with irrelevant, sensational, inadmissible nonsense that will never see the light of day at trial.
Federal Rule of Criminal Procedure 7(c)(1) requires the indictment to consist of a “plain, concise and definite written statement of the essential facts constituting the offense charged . . .” The first 27 pages of this Indictment are unnecessary under FRCP 7 and include a host of political garbage, including reproductions of text messages from Mar-a-Lago employees, inflammatory statements, irrelevant past political quotations and misleading photographs and comments. Numerous courts and commentators call into question the propriety of the “speaking indictment.” See Talk is Cheap: The Misuse of 'Speaking" Indictments and U.S. v. Cadden, (D.C. Ma. 2016)(wherein the court refused to read the “speaking” indictment to the jury and refused to allow the jury to take a copy of the indictment while deliberating). Witnessing this abuse in the first Federal indictment of a former U.S. President is nothing short of reviling.
If these charges were legitimate, why would the Special Counsel turn the indictment itself into such a blatantly political statement? Why would he include a host of immaterial, irrelevant, prejudicial and inadmissible nonsense in the indictment? In my opinion, the answer is simple: this entire bogus investigation, indictment and prosecution is about politics and nothing more.
The Charges (Starting with what Trump is NOT charged with)
Turning to the indictment itself, what is most telling (both about the nature of the indictment and the propaganda and misinformation campaigns waged by the Fake News Media and Biden Administration) is what President Trump is NOT charged with.
Trump is NOT charged with Classified Document Violations
First and foremost, President Trump is not charged with any crime for mishandling, retaining or disclosing classified information or documents. That bears repeating: President Trump is not charged with any crime for mishandling, retaining or disclosing any classified information or documents. There are multiple Federal statutes criminalizing the mishandling of classified documents and information, but President Trump is not charged with violating those. Among these statutes are 18 U.S.C. 798 (entitled, “Disclosure of Classified Information” and 18 U.S.C. 1924 (entitled, “Unauthorized removal and retention of classified documents or material”). Despite the fact the Federal Indictment of Trump is littered with references to “classified” documents, Trump is NOT charged with violating the Federal laws relating directly to classified documents or information.
The indictment charges President Trump with violating a specific provision of the Federal Espionage Act. The Espionage Act is found at 18 USC 793 and is entitled, “Gathering, transmitting or losing defense information.” (President Trump is also charged with conspiracy obstruction and concealment of the same documents and with causing others to make false statements. I will deal with these counts in another substack article.) The specific provision President Trump is charged with violating is section 793(3) which is reproduced below:
Another important point to remember is the Indictment itself states President Trump “retained at The Mar-a-Lago Club documents relating to the national defense, including the following” and then provides a table with columns describing the documents. The first row of the table lists “Date of Offense/Classification Marking/Document Description.”
The Indictment makes several references to “classified documents” in the explanatory portions, but in the section stating the charges, the Indictment cleverly employs the terms “classification marking” or “classification markings.” This is potentially critical, because the simple fact a document contains classification markings does not mean it is classified.
An illustration of this fact will inform readers. Readers will undoubtedly recall the Federal Government obtained several warrants from the Foreign Intelligence Surveillance Court to conduct extensive electronic surveillance on Carter Page, who was a national security consultant for the Trump campaign in 2016. These warrants were obtained during the FBI’s “Russian Collusion” investigation. As we now know, the entire Russia Collusion Hoax investigation was illegitimate from start to finish.
If you followed the official reports and investigations into the questionable origins and illegitimate nature of the Russian Collusion Hoax, then you probably read or at least viewed one or more of the Carter Page FISA Warrant Applications. A screenshot of one of the applications is reproduced below:
A screenshot from yet another one of the Carter Page FISA Warrant Applications is reproduced below as well:
Readers will note the “Top Secret/NoForn” classification markings across the top of both of these FISA Warrant Applications.
Top Secret refers to “national security information or material which requires the highest degree of protection” according to 18 CFR §3a.11. "NoForn" refers to material that is not to be released to foreign nationals.
The point is this: The Carter Page FISA Warrants are no longer classified, but still bear classification markings. Simply because a document bears classification markings does not mean it is classified. The Federal Government could literally seize the screenshots of the Carter Page FISA Warrants reproduced in this post and claim it seized documents bearing “Top Secret/NoForn” classification markings. That naked assertion would be true, that the documents bore the markings, but the implication that the documents remained classified would not be.
Importantly, no one has seen the documents the Special Counsel and Federal Government claim bear these “classified markings.” After the FBI raid on Mar-a-Lago in August 2022, President Trump filed suit in Federal Court trying to limit the Feds access to the documents. The Federal Judge originally ordered the Federal Government to stop reviewing the documents and appointed a Special Master to review the documents seized. The Eleventh Circuit Court of Appeals, however, dismissed the case at the Federal Government’s request. The Special Master, the Court, President Trump nor any of his attorneys reviewed these allegedly “classified” documents.
As President Trump’s lawyers noted in their April 26, 2023 letter to the United States House of Representatives Permanent Select Committee on Intelligence (HPSCI), they had not been allowed to review any of the documents even as of that time:
Time will tell, but would anyone put it past the Biden Regime or Jack Smith’s office to mislead the courts, the defense, the media and the public about the classification of the documents held by President Trump?
The §793(e) Espionage Act Claims & The PRA
As stated above, the Indictment charges President Trump with violating section 793(e) of the Espionage Act. Simply stated, this charge requires the Government to prove President Trump had (1) “unauthorized” possession of (2) “national defense information,” that President Trump had (3) “reason to believe the information could be used to the injury of the United States” and that he (4) “retained the material and failed to deliver it” to the Government and that he did so (5) “willfully.” See Pattern Jury Instructions for Federal Criminal Cases at pgs. 116-117. (Courts are in disagreement over whether the “reason to believe the information could be used to the injury of the United States” element applies in a document case, rather than a verbal disclosure or “information” case.)
The “willful” element is important in this context. The “willful” element requires the Government to prove the accused “acted intentionally and purposefully to do something the law forbids, that is, with the bad purpose to disobey or to disregard the law.” See U.S. v. Hitselberger. This element will prove critical (and, perhaps, fatal to the Government’s case) when the Espionage Act is measured against The Presidential Records act.
Furthermore, President Trump’s possession of the material was not “unauthorized” at all. The reason for this is the material delivered to Mar-a-Lago at the end of President Trump’s term were the documents he believed to be his documents. This issue is governed by another statute altogether known as The Presidential Records Act. 44 U.S.C. §2201-2206.
As stated above, under the PRA, records pertaining to the Office of the President are either “Presidential Records” or “personal records.” The PRA requires “documentary materials” (which is broadly defined) to be “categorized as Presidential records or personal records upon their creation or receipt and be filed separately.” (Emphasis added.) Presidential records are expressly defined in the PRA to include “documentary materials, or any reasonable segregable portion thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President . . .. (See 44 U.S.C. §2201(2).)
Therefore, under the PRA, from the beginning the President decides which records are “Presidential records” which records are “personal records” and, after making that determination, separates the records. Furthermore, included in Presidential records are records received by the President or his office.
Furthermore, after the President makes the unilateral determination that a document is his personal document or a Presidential document under the PRA, there may be no ability by courts to second guess that determination. One of the seminal PRA cases in United States Court of Appeals, District of Columbia Circuit is called Armstrong v. Bush or Armstrong I in which the court held no judicial review of a President’s classification of his records could be made. In a subsequent case, the same court found such a classification could be reviewed to determine if a classification was made to incorrectly classify an agency record as a Presidential record. This case is known as Armstrong II. The famous “Clinton sock drawer” case, in Judicial Watch, Inc. vs. National Archives, is further support for the notion the President’s classification of personal records is not open to question.
As the letter from President Trump’s attorneys to the HPSCI noted:
The records sent to Mar-a-Lago were President Trump’s personal records under the PRA, having been classified by him or his staff as such during his Administration. Even if President Trump incorrectly classified Presidential records as personal records, that was his classification to make under the express terms of the PRA. There may be no ability of anyone to challenge his classification.
Nevertheless, even if such a classification was incorrect, the PRA specifically provides the Presidential records of a former President shall be available to the former President. 44 U.S.C. §2205(3). The PRA also has specific provisions pertaining to secret or classified Presidential records. See 44 U.S.C. §2204. Thus, even if the records pertain to National Defense or are secret or classified the PRA dictates the records “shall be available” to the former President.
(Did you know former Presidents of the United States continue to receive classified intelligence briefings? If providing classified information to a former President is illegal, then why do former Presidents George W. Bush and Barack Obama still receive intelligence briefings?)
Finally, the PRA contains no criminal provisions whatsoever. This stands to reason, since one may hardly fathom a greater intrusion into the day-to-day management of the Presidency than trying to prosecute a President who “mishandled” some records. One must remain mindful in this context that the PRA gives the President authority to destroy even records the President himself classified as “Presidential records,” and, as the Court stated in Armstrong I, “The PRA gives neither the Archivist nor the Congress the authority to veto the President’s decisions to destroy the records.” Since the President has authority to destroy even those records he classified as “Presidential records,” the general Federal criminal provision about destroying records, 18 U.S.C. §2071, could not possibly apply to the President’s handling of “Presidential records,” (even if one assumed 18 U.S.C. §2071, was otherwise applicable, which is far from clear). Thus, violations of the PRA do not appear to come with any criminal sanctions at all.
How in the world could President Trump’s possession of these documents be “unauthorized,” as the Government is required to prove under section 793(e)? How could President Trump’s continued possession of his records be “willful” under section 793(e)?
There is more, including credible claims of prosecutorial misconduct, the host of irregularities surrounding how the FBI and DOJ handled the case, as well as the timing of the indictment being used to cover for Biden's alleged bribery scheme.
The simple fact of the matter is this case is not an “Espionage Act” case. It is a Presidential Records Act case. This indictment is an abomination.
In Part Two, I will breakdown the remainder of the charges against President Trump in the indictment. Be on the lookout for that.
(Don’t forget my new book, Fake News Exposed: 25 of the Worst Media Lies about Conservatives, Guns, COVID and Everything Else. To book download a free copy, just visit my website DanielRStreet.com. You may pick up a copy of one of my other books at Amazon.)
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