Thoughts On The Federal Trump Indictment: It's Shockingly Weak

Two days ago (June 8) a federal grand jury in Florida, at the behest of Justice Department “special prosecutor” Jack Smith, indicted ex-President and current presidential candidate Trump over matters related to the retention of classified documents generated during his time in the White House. The full text of the indictment can be found here.

You might think that indictment of the currently-leading opposition candidate to the incumbent president in the upcoming election would be something reserved for a case of extraordinary significance. After all, using the criminal justice system to prosecute political rivals is one of the hallmarks of the Banana Republic. Among those who have used the strategy are Hugo Chavez of Venezuela, Daniel Ortega of Nicaragua, Evo Morales of Bolivia, and, of course, Vladimir Putin of Russia (whose lead political rival, Alexei Nalvalny, languishes in jail on a charge of “fraud,” which seems to consist of raising campaign funds while supposedly disqualified from running for office due to being on parole from a previous phony charge). Surely the American President and Justice Department would not resort to a flimsy indictment to take out the leading political rival.

Initial reactions to the indictment from both sides of the political aisle have been that it appears strong. There is even a transcript of a recorded conversation involving Trump where he concedes that certain of the documents in question involve things that are “still a secret,” and a staffer responds “now we have a problem.” (paragraph 34). What could be the possible answer to that?

In my case, I prefer to take a couple of days and investigate things before reacting prematurely to something that might appear plausible on its face.

If you read the introductory paragraphs of the indictment, you can be forgiven for getting the impression that the case is about the mis-handling of “classified” documents. For example, from paragraph 2: “Among the materials that TRUMP stored in his boxes were hundreds of classified documents.” And from paragraph 3: “The unauthorized disclosure of these classified documents could put at risk the national security of the United States. . . .”

But then you might be surprised that when you get to the actual crime charged, it arises under a statute that does not relate to “classified” documents per se, and is independent and separate from the whole system of classified documents. The statute in question is 18 U.S.C. Section 793(e). Here is the text of it:

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 . . . Shall be fined under this title or imprisoned not more than ten years, or both.

Nothing in there mentions classified information, or turns on whether the information in question is “classified” or not. The relevant issues are, instead, whether the person has “unauthorized possession or, or access to” information “relating to the national defense” and “causes it to be communicated to” someone “not entitled to receive it.”

Now, you might think that, in evaluating whether a case against Trump might have those elements, it would be rather critical to consider the importance of the Presidential Records Act of 1978. That is the statute that made presidential records the property of the government (previously they were understood to be the personal property of the President or former President). But in making presidential records the property of the government, the act contained this rather important carve-out (22 U.S.C. Section 2205(3)):

Notwithstanding any restrictions on access imposed pursuant to sections 2204 and 2208 of this title . . . (3) the Presidential records of a former President shall be available to such former President or the former President's designated representative.

Somehow the indictment that has been issued does not anywhere mention this section.

So by the clear words of this statute the ex-President is absolutely entitled to have “access” to the “Presidential records” generated during his own term, and also he can further legally provide access to whoever he designates as his “designated representative.” So how could Trump fit the element of Section 793(e) that he had “unauthorized possession of, or access to” the documents in question, whether classified or not? And, since he has the complete ability to make people his “designated representative,” how can he have given access to the documents to people not “entitled” to receive them?

The Presidential Records Act does make the records in question — or at least the originals, to the extent that that term is meaningful in today’s mostly electronic world — the property of the government. But if that is the case, why isn’t this whole Mar-a-Lago document brouhaha only a question of whether Trump could keep the originals, or on the other hand whether he had to make a copy and send the originals back to the National Archives? And if that’s all this is about, is the Justice Department really serious in bringing this indictment against the leading candidate of the opposition party?

Other than 18 USC Section 793(e), all the other “crimes” pleaded in this indictment are the usual FBI/Justice Department litany of process crimes — “lying” to the investigators, hiding things, saying things had been turned over when they had not, etc. OK, but remember that we now know that the thing that FBI/Justice was supposedly investigating is not a crime at all. Granted that the position of the FBI and Justice is that any failure to be completely forthright with them is a crime, even when they are torturing you by corruptly investigating you for something that you have an absolute right to do. I’m not sure that a Florida judge or jury will agree with FBI/Justice on this one.