The Espionage Act and the Presidential Records Act

This is a guest post over at the indispensable Techno Fog, Shipwreckedcrew, a former federal prosecutor who currently represents 13 January 6 defendants facing trial. (He also represents three January 6 defendants whose cases are on appeal.) All revenue from his paid subscriptions is used to cover expenses incurred in representing clients charged with crimes related to January 6. You can contribute directly to that cause at the January 6 Legal Defense Fund page on GiveSendGo.

The Espionage Act and the Presidential Records Act

An evidentiary burden Special Counsel Smith may not win

By: Techno Fog, June 16, 2023:

ADVERTISEMENT

The Presidential Records Act is not a clear path to exoneration for former President Trump.

But the Espionage Act is not “cut and dried” in its prohibitions when applied to a former POTUS who on his last day in office had absolute — ABSOLUTE — authority to see and possess every document and piece of information held by the Executive Branch.

Trump has been charged by the Smith SCO with 31 counts of violating the “Espionage Act” — Title 18 United States Code Section 793.

Section 793(e) reads as follows:

(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 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 entitled to receive it

ADVERTISEMENT

Counts 1 through 31 of the indictment include on the following charging language from this subsection of Sec. 793(e):

Immediately below this language, the Indictment lists in serial fashion 31 separate documents which the Special Counsel alleges contained “national defense information” — “NDI” for short.

It should be quite obvious that SCO Smith made a deliberate decision to NOT include in the charging language a large portion of the statutory verbiage created by Congress. That’s not necessarily unusual in the abstract, but in considering what Smith included and excluded, it forecloses some theories of liability that others might think Smith will pursue. Drafted in the fashion that it is, this case is all about one thing — and one thing only unauthorized retention.

Every federal crime is composed of several “elements” that are individually stated for a jury in what are called “Jury Instructions” that are fashioned by the Judge and read to the jury at the conclusion of a trial before they begin deliberations. Prosecution and defense often battle fiercely over the precise language of the final instructions as that language will shape the way that the attorneys argue the evidence to the jury in closing arguments. Cases are quite literally won and lost based upon the final language in jury instructions that explain the elements of each offense.

Fortunately, the jury instructions for a Sec. 793(e) charge are pretty simple:

1. The defendant had unauthorized possession of a document;
2. The document related to the national defense; and
3. The defendant willfully retained the document and failed to deliver it to the officer or employee of the United States entitled to receive it.

Here are the key words from those jury instructions:

ADVERTISEMENT

• Unauthorized
• Possession
• Document
• National Defense
• Willful
• Retained

This is how trial attorneys break down theories of the case into component parts, and then focus on the testimony and exhibits that will be used to prove each of these key components during the trial — or not, from the perspective of the defense.

Paragraph 77 of the Indictment, which starts on page 28 of the 49 page document, is where the REQUIRED allegations begin. Everything from page 1 to 27 is “story telling” by the Special Counsel, included only so it could be reported by the dutiful anti-Trump press. There is a substantial likelihood that significant portions of the allegations on the first 27 pages won’t be heard by a trial jury as they aren’t relevant to the elements of the offense. SCO Smith could have started the indictment on page 1 below the caption with Paragraph 77 and it would have been legally sufficient. Everything he included before Paragraph 77 he did for “effect” — it was included for no purpose other than to drive the narrative that Trump is guilty of doing terrible things, when the only crimes actually ALLEGED in Paragraph 77 involve retaining documents he was not authorized to possess.

Let’s now turn to the language in the indictment and consider why the statutes passed by Congress make a straightforward analysis of where the law takes us almost impossible to decipher.

As we go through this analysis, understand that the confusion revealed is actually a path to exoneration for a former POTUS that probably would not be available to any other individual. It is quite likely that the trite saying “No one is above the law” might not be altogether true in some limited circumstances — like here.

Start with this observation of the charged language — both in the statute as a whole and in the charging language of the indictment — “Whoever having UNAUTHORIZED possession…”

Donald Trump was POTUS until Noon on January 20, 2021, by operation of law that fixes Presidential terms as beginning and ending at that time and on that day following a Presidential Election in November of the previous year.

Now note the following language used by SCO Smith in Paragraph 24 of the Indictment:

“In January 2021” — well, up through Noon on January 20 — as POTUS, Donald Trump had AUTHORIZED possession of every one of those documents, classified or otherwise. This is a tacit — and what will later become an actual admission by SCO Smith that Trump did have authorized possession of some/all the documents at some point in time.

How does the Smith SCO criminalize this “authorized” possession? With a naked little sentence at the end of Paragraph 4 on page 2 that he is going to have to establish to be true by virtue of some magic wand that is waived at precisely Noon on January 20:

Keep reading…….