The indictment of former President Donald Trump for holding military documents and obstructing the government from taking them is built on a novel legal theory that has multiple weaknesses, according to several lawyers and other experts.
The case has been portrayed in the media as being about Trump’s retaining classified documents from his presidency. However, the charges sidestep that issue and instead use a clause in the Espionage Act that criminalizes a failure to hand over national defense information. The indictment further alleges that Trump and staffer Waltine Nauta hid some documents when the government demanded them through a subpoena.
The alleged Espionage Act violations impose a high burden of proof and raise the question of whether the statute should have been applied to begin with and, if not, whether the underlying investigation should serve as a basis for obstruction charges, some lawyers told The Epoch Times.
“The key legal issue here is the interplay between the Presidential Records Act and the Espionage Act,” said Will Scharf, a former federal prosecutor.
The Presidential Records Act of 1978 stipulates that after a president leaves office, the National Archive and Records Administration (NARA) takes custody of all his official records.
The law allows former presidents to keep personal documents such as “diaries, journals, or other personal notes” not used for government business.
“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,” NARA’s website states.
However, the Presidential Records Act isn’t a criminal statute. If a former president refuses to turn over some documents or claims obviously official documents as personal, the worst he could face is a civil lawsuit.
There’s little case law on such matters. In 2012, Judicial Watch tried to force former President Bill Clinton to turn over dozens of interview tapes he kept from his presidency. Clinton claimed the tapes were personal and the court sided with him. Judge Amy Berman Jackson, an appointee of President Barack Obama, went so far as to argue that the court had no way to second-guess a president’s assertion of what is and isn’t personal.
“Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office, it would be difficult for this Court to conclude that Congress intended that he would have less authority to do what he pleases with what he considers to be his personal records,” Jackson wrote.
However, the Department of Justice (DOJ) is now arguing that former presidents can be charged under the Espionage Act of 1917 for possession of documents that they kept from their presidencies.
“That’s a totally novel legal issue,” Scharf said. “It’s never been tested before. The Espionage Act has never been used to prosecute in this sort of a setting.”
Some lawyers believe the Espionage Act can’t be used this way because it wasn’t meant to be used in such a fashion. Before 1978, former presidents owned all documents from their presidencies, including any national defense information. There’s never been any suggestion that their holding on to such documents violated the Espionage Act.
“Congress has been very, very clear … that the act that applies to presidents and former presidents is the Presidential Records Act. The act that applies to everyone else is the Espionage Act, which has different requirements,” said Jesse Binnall, a lawyer that represented Trump in another matter.
Mike Davis of the conservative Article III Project voiced a similar opinion.
“Even if President declassifies his presidential records and takes them when he leaves office, he can still get charged under Espionage Act. … Promise that theory won’t fly with Supreme Court,” he said in a tweet.
Much of the indictment rests on the allegation that Trump kept national defense documents “willfully”—with criminal intent.
Yet the document falls short in providing evidence for such intent.
On May 11, 2022, the DOJ obtained a subpoena compelling Trump to turn over all documents with classification markings, including electronic ones.
One of the key claims is that Trump instructed Nauta to move boxes of documents around before his lawyer came to search the boxes for documents in response to the subpoena.
Nauta allegedly moved 64 boxes out of a storage room where Trump kept items and documents from his presidency and moved them to Trump’s residence at the resort. Nauta then moved back 30 boxes shortly before Trump’s then-lawyer, Evan Corcoran, searched the storage room for the subpoenaed documents, according to the indictment, which refers to security camera footage obtained from Trump’s Mar-a-Lago resort via a subpoena.
The indictment alleges that the boxes were moved to hide responsive documents from Corcoran. It presents a text message in which Nauta said Trump told him to put some boxes in his room.
“I think he wanted to pick from them,” Nauta said.
There’s no word of whether Trump, in fact, went through the boxes and if so, what he was looking for.
On Aug. 8, 2022, when the FBI raided Trump’s Mar-a-Lago home in West Palm Beach, 102 documents with classified markings were found in the storage room and in Trump’s office.
Some lawyers have argued that Trump should have challenged the subpoena in court because it was too broad. It’s likely that Trump had many documents with classification markings that had been declassified. Reams of such documents are available online.
Also, the subpoena mentioned nothing about national defense information, which doesn’t need to bear classification markings.
The indictment states that Trump’s alleged crime of willfully retaining 31 specific national defense-related documents started on Jan. 21, 2021, after he allegedly “caused” boxes of materials from his term to be shipped to Mar-a-Lago.
Details about moving the boxes to Mar-a-Lago remain unclear. Newsweek reported that 27 boxes were shipped to Trump’s home by accident. Trump’s former lawyer, Timothy Parlatore, said the documents were moved by the General Services Administration.
The indictment doesn’t explain how Trump was supposed to know of these specific documents. It presents no evidence of any criminal intention on Trump’s part to take and keep these documents.
“There are serious, serious legal infirmities in the arguments that they’re using,” Scharf said.
If the Espionage Act charges won’t withstand judicial scrutiny, the additional obstruction charges shouldn’t stand on their own, he argued.
“There’s a longstanding DOJ practice that you don’t indict for obstruction, or for really any process-related crime, unless there’s underlying criminality,” Scharf said. “So if the DOJ launches an investigation into something, somebody allegedly obstructs that investigation, but it turns out the investigation itself wasn’t well founded, that typically won’t result in an indictment.”
When it comes to investigations involving Trump, however, prosecutors have commonly brought process-crime charges alone, such as in the cases of Trump’s former national security adviser, Lt. Gen. Michael Flynn, and his 2016 presidential campaign adviser George Papadopoulos.
“I think in this case, especially, you’re seeing this weaponization of process crimes that the FBI has begun to use, where they will, under some flimsy or some circumstantial premise, open an investigation on somebody for something and then during the course of that investigation hope that they can bring charges that are process crimes,” said former FBI agent and whistleblower Steve Friend.
The Clinton Treatment
There are indications that Trump expected to be able to deal with the government similarly to Clinton and his wife, former Secretary of State Hillary Clinton.
In a CNN town hall earlier this year, Trump said that based on the Presidential Records Act, he was allowed to “negotiate” with NARA on what he could and couldn’t keep as personal items. NARA has rejected such an interpretation, but Trump was likely referring to the 2012 Clinton case.
The indictment also indicates that Trump questioned his lawyers on whether he could handle the subpoena similarly to how Hillary Clinton did in 2015, when her lawyers infamously sorted through her emails from her State Department tenure and had about half of them deleted, claiming that they weren’t work-related. The FBI later found out thousands of work-related emails were missing.
“Wouldn’t it be better if we just told them we don’t have anything here?” Trump allegedly asked and recounted the Clinton episode multiple times.
Binnall said those were “absolutely valid legal questions” for Trump to raise.
“You’re saying, ‘Well, wait a second. If legally [Clinton lawyers] were able to do this, and it worked, why can’t we do it the same way?’”
The case has been brought by Jack Smith, a former federal prosecutor appointed special counsel by U.S. Attorney General Merrick Garland on Nov. 18, 2022.
Smith has been criticized by Republicans for allowing his prosecutors to go rogue both in this case and in his prior role as head of the DOJ’s Public Integrity Section.
Binnall recalled how a decade ago, prosecutors under Smith violated a defendant’s constitutional rights before a grand jury, leading the court to dismiss charges against the defendant. In the same case, prosecutors seized his client’s phone and failed to use a filter team to prevent the investigators from seeing Binnall’s privileged communications with his client, he said.
In the Trump case, Smith managed to get a judicial order to pierce Trump’s client-attorney privilege, but that issue could be relitigated, Binnall suggested.
“I think you’re going to see motions to suppress [evidence] based on the violation of attorney-client privilege,” he said.