Thoughts on Trumps Indictment

I am reluctantly  doing a post on Trumps indictment. Reluctantly because I suspect this a scripted Reality Show programmed into the Simulation we are living through designed to pull us into one Sorcerers Circle or another.

Thats said, not everything is Fake so I will pretend this is real, with Trump doing what he does best and creating chaos like only he can do.

The indictment seems pretty clear and not a good look at all for a guy wanting to be President again, assuming its all true.

https://s3.documentcloud.org/documents/23839677govuscourtsflsd64865330.pdf

At the heart of the matter is this

We will get to this in a bit, but lets step back a bit and ask did Trump have a legal right to even have classified documents, or documents that were unclassified or declassified that were related to doing his job as President?

After the Nixon Presidency when all records held by the President were considered to be the Presidents Personal Property to do with as he wished after he left office Congress Passed the Presidential Records Act (PRA) and Jimmy Carter signed it into law in 1978.

The PRA makes clear that, upon the conclusion of the President’s term in office, National Archives and Records Administration (NARA) assumes responsibility for the custody, control, preservation of, and access to the records of a President. 44 U.S.C. 2203(g)(1).

The PRA makes the legal status of Presidential records clear and unambiguous, providing that the United States reserves and retains “complete ownership, possession, and control of Presidential records.” 44 U.S.C. 2202.

There is no provision in the law for presidents to take official records with them when they leave office to sort through. If a former President or Vice President finds Presidential records among personal materials, he or she is expected to contact NARA in a timely manner to secure the transfer of those Presidential records to NARA. 

I won’t bore you with the details, but under the PRA it does not matter if the records are classified or not, thats a Red Herring.  The records are the property of the government and the President cant have them except as part of a Presidential Library where the documents will be controlled by the NARA’s Archivist.

The PRA does not include personal records and it clearly defines what is a personal record and what is a Presidential Record

The PRA defines presidential records as documentary materials, or any reasonably 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, 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.

Such term—

(A) includes any documentary materials relating to the political activities of the President or members of the President’s staff, but only if such activities relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.

This definition of presidential records is distinct from federal records and excludes a President’s personal records.

Documentary materials, of which presidential records are a part, includes “all books correspondence, memoranda, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, and motion pictures, including, but not limited to, audio and visual records, or other electronic or mechanical recordations, whether in analog, digital, or any other form.

A President’s personal records— identified in the PRA as documents “of a purely private or nonpublic character”—are excluded from preservation requirements.

.Personal records include “diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business.

The President does not have discretion to categorize a Presidential record as a personal record. 

https://www.archives.gov/press/press-releases/2023/nr23-016

So for example Classified or Declassified Documents related to Nuclear Secrets or Presidential Daily Briefs are not personal records

NARA does not have direct oversight authority over the White House records program as it does over federal agencies’ records programs. Instead, NARA “provides advice and assistance to the White House on records management practices upon request,” which would appear to give the President discretion over which materials might be included under the PRA.

https://crsreports.congress.gov/product/pdf/if/if12056

While this is true for ambiguous cases, Classified Documents even if subsequently declassified are unambiguously Presidential (or Federal) Records. And by Law, ex-Presidents cant have them

In the event of potentially unlawful removal or destruction of government records, Title 44, Section 3106, of the U.S. Code requires the head of a federal agency to notify the Archivist, who initiates action with the Attorney General for the possible recovery of such records.   The Archivist is not authorized to independently investigate removal or recover records.

https://crsreports.congress.gov/product/pdf/if/if12056

So obviously the DOJ was called in to investigate and recover the records, which they did.

Anyone but the most diehard Trump Fanboy would agree Trump had no right to these records and that no reasonable person could claim they are Personal Records under the lawful Presidential Records Act.

He simply chose to violate the Law because he can, and there was no real enforcement mechanism to prevent him from doing so. Kind of like running a light or worse in a Town where there is no Sheriff.

Good luck to Trump if asked in court to explain  how or why his personal records got a Classification marking and still be a Personal Record, although I doubt he testifies

Trump knew this was wrong and despite frequent requests/demands refused to return all documents (he did return many after a long while which means he knew they were not personal records).

To make matters worse on at least two occasions (that we know about) he showed Classified documents to those who had no security clearance, and he stored these documents at times  in public spaces of Mar-a Lago outside his protected residence, and did not inform the Secret Service he was storing Classified Documents.

If this was Hillary, most of Trumps supporters would be screaming to “Lock Her Up” . Trump promised to do so then changed his mind after the election.

Why did Trump do this?  I have no idea.  Probably thought it was a good way to get attention and distract his base from his record on COVID lockdowns and Operation Warp Speed, so he can play the victim and energize his cult worshippers

As President and former President, he was required to follow the PRA but blatantly disobeyed it and took away the property of the USG and the American People, some of which could pose a national security risk if it fell into the wrong hands.

For the record, I think we probably classify way too many documents, and for way too long, but no doubt there are some documents deserving to be kept secret

So why didn’t the Indictment reference the Presidential Records Act?   Because Congress wrote the PRA assuming that the President could be trusted to follow the law without any oversight.

I can certainly say that in 1978 nobody imagined someone with Trumps character or lack thereof would ever be elected President, let alone, god forbid, reelected.  If they did, no doubt they would have given the PRA some teeth.

In any event, as written the PRA could lead a bad or politically biased judge to conclude the President had the final say in this matter.

Indeed , such an interpretation was made in the Clinton Sock  Drawer Case where tapes of Clintons private interviews with an author about his Presidency were designated as Personal Records.

That designation seems reasonable compared to claiming Classified Nuclear Secrets are Personal Records

https://www.zerohedge.com/political/trumps-boxes-and-clintons-sock-drawer

Regardless, the DOJ preferred to stay on solid ground.   Some documents were Classified, as even Trump admitted in one case.  Indeed, some of them may have been Agency Records which are not Presidential Records and subject to the more stringent Federal Records Act , but we cant know that for sure.

So the DOJ went with the Espionage Act alone instead of adding in PRA violations.

The Espionage Act (18 U.S.C. §793(e)) requires the mishandling of national security information to be "willful."

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;

Some like to compare Trumps case with Hillary Emails, Bidens Classified Docs and Clintons Sock Drawer

This article makes some good points as to why these are really not very good comparisons

Your guide to the nonsense about Trump's federal indictment

On July 9, 2016, Comey explained why charges were not appropriate in Clinton's case (emphasis added):

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

The indictment against Trump includes evidence that the mishandling of classified information was intentional and willful. Specifically, in July 2021, there is an audio recording of Trump showing four individuals without any security clearance a classified "plan of attack" produced for him by the Department of Defense

In contrast, when the FBI requested work-related emails from Clinton's personal server, Clinton, through her attorneys, produced them.

The FBI found no evidence that any "work-related e-mails were intentionally deleted in an effort to conceal them."

In other words, had Trump simply turned over the documents when asked, he would almost certainly not be facing charges.

The [Biden] investigation began not because of any request but because Biden voluntarily reported that classified documents were found at Biden's University of Pennsylvania office.

Clintons case

The case was dismissed, however, because the court found that it could not order Clinton to turn over materials to the National Archives. The line frequently cited by right-wing media is: "[T]he [Presidential Records Act] does not confer any mandatory or even discretionary authority on the Archivist to classify records. Under the statute, this responsibility is left solely to the President."

But the case against Trump does not involve determining whether the documents at issue are personal records that Trump can retain or a presidential record that should be in possession of the Archivist.

Under the Espionage Act, the issue is Trump shared national defense information with unauthorized persons and failed to return the documents containing the information to government officials.

Declining to prosecute, even after uncovering substantial evidence that Trump committed crimes, would set the precedent that a former president is exempt from federal criminal laws after leaving office, including the laws in place to protect national defense information.

Prosecuting Trump sets the precedent that former presidents can be prosecuted after leaving office.

I am not 100% sure the violations under the Espionage Act are all that solid, it probably depends on the judge.  It could be argued Trump had no evil intent in showing the documents and was just a victim of his own poor judgement

However, he seems to be nailed on the False Certification (lies)  to FBI and Grand Jury relating to the Subpoena ordering return of documents with Classified Markings.  Also Conspiracy to Obstruct Justice and Withholding documents from Grand Jury.

Perhaps his Personal Assistant and Lawyers back him up and say this was all on them and take the fall for Trump, but I  cant see it happening.

So even if a Judge rules he committed no crime by having the documents and showing them around he will likely be found guilty for obstruction of justice and lying to the FBI. Any of us do that we go to jail, no ifs or buts about it.

Its doubtful that leads to any jail time, given he is a former President,  especially if he accepts a plea deal before a trial .   I guess this seems to be the most likely and preferred outcome.

If he wins the election he can pardon himself, his lawyers and personal assistant.  If not the next Republican President will.

Thats all.

Other Links on PRA

https://crsreports.congress.gov/product/pdf/IF/IF11119

https://www.archives.gov/press/press-releases/2023/nr23-016

https://www.archives.gov/press/press-releases/2023/nr23-016

https://www.archives.gov/press/press-releases/2023/nr23-016