The Indictment: A Different Perspective-The Many Defenses Available to President Trump

I address the indictment of President Trump as an American citizen, as a person who spent most of his adult life as a civil, not criminal, trial lawyer, as one who hopes to make an objective analysis of the issues raised in this prosecution, the first in American history of a former President of the United States. In doing so, my take on the case may appear to some who have read the allegations in the indictment and have been shocked, mortified, and certain that he is, in the unfortuante language of a former Attorney General of the United States, “toast!”, not only different but maybe radically so. Arousing those reactions was, of course, the entire purpose of this “speaking indictment”, referred to by one pundit as basically a press release, as it was sure to be parroted by every single outlet of the mainstream media and, sadly, many of the so-called right leaning outlets as well.

To cut to the chase, I do not believe that the former President is “toast” despite my never having occupied the august office of the Attorney General, nor do I think any reponsible attorney should be making such an outlandish statement when all he has to base such a “conclusion” on are the charges in the indictment itself.

The reason is as simple as it is basic to our more and more battered systemt of justice and the Rule of Law. The statements made in the indictment are: charges. Allegations. Period. Full stop. Additionally, try as I will to be objective in this analysis, I must note that not many days ago, most of us on the right held-to be most charitable-rather strong views about the collapse of integrity, honesty and truthfulness of the very department which is making these charges. Now, very strangely in my view, many of those same people are quoting these allegations as if the trial was held this past Tuesday, not just the arraignment.

I know a little about making charges as a Plaintiff’s Lawyer and then seeing excellent, sometimes brilliant, defense lawyers shred them like so much tissue paper, sending me-and my client- to the bar to drown our sorrows.

Thus, this analysis will not discuss the actual indictment against President Trump as there are many other sources readily available for those who want to subject themselves to the indignity of finding out what this document really says and, in the process, what its real purpose is. The indictment itself is accessible here. This analysis, on the other hand, will attempt to present, in summary form, the actual, well-founded defenses which can be presented on behalf of President Trump with citations to fuller discussions of each point for further exploration and research for those who wish to “get into the weeds”, to use a current buzzphrase. In that regard, it has been my experience as a trial lawyer that cases are often, if not most of the time, won or lost on the basis of a document, a witness, a report, a photograph, a statute found by someone who had taken the time to “get into the weeds”. Not as enticing or exciting as the 49 pages of unnecessary verbiage contained in this indictment perhaps but this case may well be one of those which will stand or fall based on what is “hidden” in those “weeds.” My research has indicated to me that there is a troubling paucity of discussion about the defendant’s right to a full and vigorous defense against every single allegation in this indictment and it will be the goal of this discussion to go into greater detail about the numerous constitutional, statutory and other defenses than many pieces have done, some of which seem to assume the thruthfulness of all the charges, a very irresponsible conclusion in my opinion.

Nothing said here should be taken as reflecting any view on my part that these charges are not extremely serious — they are. As a ready example, the charges leveled by this same Special Prosecutor, Jack Smith, against former Virginia Governor Bob McDonnell were also very serious and the media had the Governor convicted long before his conviction was reversed by the Supreme Court with a reprimand to Smith for overreaching in his interpretation of the applicable statute.

What follows is an attempt to sketch out a few of the defenses we will probably be hearing a lot more about in the months to come as the case receives more and more attention to the many legal issues raised by this prosecution and the case moves away from the childish “picture book” sensationalism of toilets and chandeliers of the charging document itself. This is a partial list and does not purport to even try to list all possible defenses. It is presented in no particular order with the exception that I discuss the one argument which could be the linchpin to the entire case and has received surprisingly little attention in the conservative media and commentariat last.

Prosecutorial Misconduct and/or Overreach

As noted above, Jack Smith is no stranger to ruthless prosecution and charges of prosecutorial misconduct; as noted by Mark Levin:

Smith also saw the campaign finance prosecution of former Democratic presidential candidate then-North Carolina Sen. John Edwards declared a mistrial, Levin noted.

The New York Times at the time called it a high-profile example of several "visible efforts" by Smith's DOJ section, listing other investigations where charges were unsuccessful or not brought including against then-Sen. John Ensign, R-Nev., former House Majority Leader Tom DeLay, R-Texas, the late Rep. Don Young, R-Alaska, and ex-Rep. Allan Mollohan, D-W.V.

"This guy Smith has a record," Levin said. "Going after the former governor of Virginia – and then he's rebuked by the Supreme Court 8-0. One of the few cases where they all got together – [he] ruined [McDonnell's] career."

"And he does the same to John Edwards in North Carolina – where the jury turned against him – because he's known for taking laws and pushing the boundaries as far as he can," Levin went on.

That pattern has clearly shown itself in the initial stages of this prosecution as well, as illustrated by the exchange between the attorney representing the President’s co-defendant, Walt Nauta, and a member of the Special Counsel team, Jay Bratt, as outlined in the following report by a former Assistant US Attorney:

Nauta’s lawyer, Stanley Woodward alleged in a court filing that during a meeting with prosecutors about his client’s case, the head of the Counterintelligence Section of DOJ’s National Security Division Jay Bratt “suggested Woodward’s judicial application [for a DC Superior Court judgeship] might be considered more favorably if he and his client cooperated against Trump.” If true, and I find it hard to believe that Woodward just made the whole thing up, this is wild misconduct. Truly wild. It could undermine the entire case against both Trump and Nauta. It could end careers at DOJ if fairly investigated. And a word on Stanley Woodward: I don’t know him, but I know of him. He is a highly accomplished lawyer. Spent a decade at Akin Gump, a top law firm, clerked on the DC Circuit, and has very substantial experience in government investigations. This is not some fly by night TV lawyer. He’s a real deal legal heavyweight, and he’s leveling an extremely serious allegation of misconduct against a senior official at DOJ.

As the author of that report, Will Sharf, is far more qualified than I could ever be in matters of Federal Criminal Law and Procedure, it is appropriate to rely on his opinion that if proven it could undermine the entire case against Trump and Nauta.

Another account of this incident may be found here.

Bearing in mind the reasonable observations of some experts in this field that arguments about selective prosecution and unequal protection of the law probably will not get very far within the four walls of a Federal Courtroom, it is appropriate to take a look at some of the statements which have been made about the very fact that the indictment was brought in the first place, as well as those about the excessively descriptive nature of the indictment, complete with color photographs of boxes in a bathroom. One of the most highly respected lawyers, law professors in the country and a former Deputy Attorney General of the United States, John Yoo, had this to say about this issue:

The Biden administration crossed a constitutional Rubicon this week. For the first time in our history, federal prosecutors have charged a former president. Also for the first time in our history, an executive branch held by the incumbent political party indicted the leading presidential candidate of the other main political party. President Joseph Biden has taken a fateful step about which even Richard Nixon did not dare to dream.

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Biden administration officials must explain why prosecuting Trump for misuse of classified documents justifies disregarding two centuries of constitutional practice. Presidents remain subject to the law just as anyone else. But our system has long understood that the Justice Department—which assists the president in his duty to “take Care that the Laws be faithfully executed”—can’t prosecute every person for every violation of every federal law.

Prosecutors must exercise discretion to choose the most important cases to bring; the critical factor is whether a prosecution serves the public interest. Even after the Civil War, the federal government didn’t make Confederate President Jefferson Davis stand trial.

Breach of the Attorney Client Privilege by the Special Counsel

We were taught, over and over again, until it became a fully entrenched mantra never to be violated, that whatever a client told you was never, never, ever to be repeated to anyone, anywhere, under any circumsances with the sole exception being if the client shared information relating to the commission of a crime. In a world where there are fewer and fewer truly sacrosanct commitments anymore this Special Counsel got the Chief Judge of the DC District Court to authorize him to “force” one of Trump’s attorneys to testify against him before the Grand Jury. The background is here:

The indictment relies on a significant amount of information received, in one form or another, from one of Trump’s lawyers, Evan Corcoran, who was compelled to testify in front of the grand jury. According to news reports, the argument for breaching the privilege was the crime fraud exception. Let’s talk a little about it. The attorney client privilege protects from disclosure to the government confidential communications made between clients and their attorneys. It has been around for centuries, and is considered a core protection in our system of justice. The crime fraud exception, though, allows the attorney client privilege to be broken in rare circumstances when two requirements are met: First, there needs to be a prima facie showing that the client was engaged in criminal conduct. Second, the client has to have obtained or sought the attorney’s assistance in furthering that crime.

The author goes on to say that it is going to be very tough for the government to prove intent on the part of Trump if Corcoran’s testimony is stricken. Another view on this, and one very much in line with the way I feel about a lawyer violating his sworn duty to protect privileged communications with his client comes from the video of an interview with Robert Barnes, a noted Federal criminal defense lawyer with a notable success record. In that interview (very highly recommended) , accessible here, at about 30:15, he makes the point that what Corcoran did here was an absolute disgrace and that what he should have done is refuse to comply with this order and refuse to testify against his own client and invite the Special Counsel to put him in jail for contempt. As Barnes notes it would be unlikely that, due to the political circumstances, they would force the issue. He also opines that the attorney’s testimony is so critical to the proseccution that if stricken it could cause the entire case to fail.

Selective Prosecution Implicitly Prohibited by The First Amendment

In the interview linked above, at about 24:20, Robert Barnes argues, quite persuasively in my opinion, that the freedoms we are guaranteed under the First Amendment implicitly mean that one has the right to run for public office and that any attempt by a sitting President to tamper with the right of one of his opponents for re-election (in this case, the clear front runner for the nomination) to run for election should be seen for what it is, i.e., election interference, and should be prohibited as a matter of constitutional law. As he points out, every single former President has national security documents in his possession - right now!- and assumig this is the basis on which this entire prosecution is based, then all former Presidents, going back to Jimmy Carter, should be indicted — right now! As he notes, if this isn’t selective prosecution there is no such thing. I note my full agreement with this argument and I would think there might be those reading this who are highly skeptical of this proposition. For those, I urge you to watch that segment of the interview as you may come away with a different view of the matter.

The Burden of Proof Under the Espionage Act and the Presidential Records Act

The interplay between the almost-certainly unconstitutional Espionage Act of 1917 and the Presidential Records Act is quite convoluted and confusing and will play a large role in this prosecution if it gets far enough for those issues to be reached. Those complexities are very ably dissected in a piece by a writer on Substack by the name of Shipwreckedcrew (a former federal prosecutor who currently repesents 13 January 6 defendants) which can be found here. It will be discussed briefly below but first attention should be given to a Wall Street Journal op ed piece by the lawyer with Judicial Watch who lost the so-called “Clinton Sox case.” Here are some highlights from that piece, slyly entitled Trump’s Boxes and Clinton’s Sock Drawer:

Although the indictment against Donald Trump doesn’t cite the Presidential Records Act, the charges are predicated on the law. The indictment came about only because the government thought Mr. Trump took records that didn’t belong to him, and the government raided his house to find any such records.

This should never have happened. The Presidential Records Act allows the president to decide what records to return and what records to keep at the end of his presidency. And the National Archives and Records Administration can’t do anything about it. I know because I’m the lawyer who lost the “Clinton sock drawer” case.

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The White House made the audiotapes. Nancy Hernreich, then director of Oval Office operations, set up the meetings between Messrs. Clinton and Branch and was involved in the logistics of the recordings. Did that make them presidential records?

The National Archives and Records Administration was never given the recordings. As Mr. Branch tells it, Mr. Clinton hid them in his sock drawer to keep them away from the public and took them with him when he left office.

Judicial Watch sent a FOIA request to the National Archives and Records Administratin (NARA) for the audiotapes and they responded that the tapes were Clinton’s personal records and were not subject to the Presidential Records Act or FOIA. They sued in Federal Court to have the tapes declared to be presidential records and to compel the government to get them. Perhaps I should insert a “hypocrisy warning” before the next sentence: The position of the Justice Department—the one and same Department now prosecuting President Trump over his boxes of records — was that “the president and the president alone decides what is a presidential record and what isn’t. He may take with him whatever records he chooses at the end of his term.”

Judge Amy Berman Jackson agreed:

“Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office,” she held, “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.”

It is impossible to square that ruling, and most importantly for purposes of this discussion, that position taken by the Justice Department with the indictment filed by the very same DOJ against another former President. However, we are assured, over and over, most recently by the Special Counsel himself, that the law must be applied equally so that there will be equal justice for all. Make of that what you will. What I think of cannot be printed here as it would be a violation of all standards of civil discourse.

Mr. Bekesha closes his op ed on a humorous note, but one which highlights the rank hypocrisy of this prosecution and all the platitudes being thrown around about equal justice:

A decade later, the government should never have gone searching for potential presidential records. Nor should it have forcibly taken records from Mr. Trump. The government should lose U.S. v. Trump. If the courts decide otherwise, I want those Clinton tapes.

The author of the other article mentioned above sets out a most interesting analogy which leads into the next, and in my non-Federal-criminal experience, what may well be major, defense argument:

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:

Says who? Apparently, Special Counsel Jack Smith.

If a soon to be ex-POTUS is carrying a briefcase containing NDI information away from the White House on January 20 at 11:45 a.m., then enters a vehicle and drives to Andrews Air Force Base for his trip home, is he subject to being pulled from the vehicle, wrestled to the ground and handcuffed by the FBI at 12:05 p.m. when he steps out of the vehicle for “unauthorized possession and retention” of documents containing NDI based merely on the passage of time? The POTUS/Ex-POTUS has done nothing while in the vehicle along the route. He was not a law breaker when he entered the vehicle, but now he’s a potential felon when he steps out of the vehicle?

Yes — this is an exaggeration to the point of absurdity that would never happen. But this is how you test the application of legal principles — do they stand up to scrutiny when they are subjected to argumentum ad absurdum.

As to the line above — “says who?”- remember Lt. Col. Vindman, he of the “Interagency is superior to the Commander in Chief” fame? If the Vindmans and Jack Smiths of the swamp win these battles, it will mean we no longer have a Constitutional Republic, but an autocratic regime with the Deep State in control. Pure and simple.

Fourth Amendment Defense- Multiple Deficiencies With The Search Warrant

By far the best discussion of this issue is found on the Robert Barnes video (starting at approximately 27) and the following is my good faith attempt to summarize his points. However, there is no substitute for actually watching this brilliant lawyer expound on the many problems with the search warrant and I highly recommend it for those who want a deeper understanding of this critical aspect of the case. Barnes starts out by referring to the “ludicrous nature” of the search warrant including, among other problems, false statements of fact upon which the warrant was supposedly based. He then notes problems with the execution of the search warrant in which they failed to present it in a timely manner and in which “they seized information that by their own admission was outside the permissible scope of the search warrant.” Critically, he notes, they haven’t identified what classifieed information was relevant to the indictment because there are no classification based allegations present in the indictment itself.

Article II of the Constitution of the United States: Plenary Power of the President

The first line of Article II of the Constitution states quite simply:

The executive power shall be vested in a President of the United States of America.

To the everlasting chagrin of many, perhaps most, of the occupants of the District of Columbia, it contains no proviso stating, for example, “except for occasions in which the Interagency shall disagree with the President, in which instances the Interagency shall prevail” or “except for those occasions when Jack Smith and Merrick Garland and Peter Sztrok and Lisa Page and the National Archivist shall determine that the President is not authorized to hold certain documents, in which case …. “

The title of one of the best pieces of writing I have found on this particular aspect of this case reads as follows: Trump did not violate the law because he could not violate the law and those words aptly describe, in my view, the breadth of the President’s authority under Article II.

A few highlights:

Those conservatives rightly outraged at the Trump indictment keep comparing his treatment to that given to Hillary, Biden, and Pence, each of whom admitted to violating national security laws. That’s the wrong argument because Trump is not similarly situated to those lawbreakers. Instead, because he was president when he took possession of the documents, Trump cannot be guilty of the crimes with which he’s charged.

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… A president’s power whether or not to treat documents as essential to national security supersedes anything either Congress or his own employees in the administrative state can do.

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The president is the ultimate authority on national security. Congress cannot decide for him what is classified and what isn’t nor can Congress or executive branch employees decide whether he made reasonable national security decisions. Likewise, people who work for agencies such as the National Archives, which started the fuss, cannot claim that laws or regulations override their boss’s plenary constitutional power. Once Trump took those documents from the White House while still president, he effectively and finally determined that they did not implicate national security.

In another piece, the author gets right to the heart of the issue and states his belief that the entire prosecution could fall if it is decided in President Trump’s favor; the article is entitled The Trump Indictment: What Can a Unitary Executive Do? (sub-titled “The question at the heart of the indictment is the extent of executive power.”) and the author makes it crystal clear that no Jack Smith or other underling can decide what President Trump was authorized to take with him when he left the White House:

The outstanding question is whether Trump was unauthorized to possess the national defense documents at issue. If Trump rightfully possessed those documents, if they were his documents, then the whole indictment falls apart. If Trump was not unauthorized to possess anything, and thus was not concealing or misrepresenting anything when he claimed that he had no other documents that needed to be turned over, there is no longer evidence to prove an essential element of (at least most of) the alleged crimes. 

By what authority are there rules within the executive branch agencies that can govern the president’s treatment of classified documents? Of course Congress can lawfully pass laws related to national defense and the protection of information that could harm the United States. But Congress cannot use that legislative power to restrict the constitutional powers of the president. 

He also has some rather pithy remarks about former Attorney General Barr’s pronouncement from on high that some of the defense related documents “are in no universe Donald J. Trump’s pesonal documents”; his reply, as he says, from the perspective of a “humble lawyer who has not a fraction of the experience or legal knowledge of Bill Barr” is that this a “strange statement”:

If Article II vests executive power in the president, then from January 2017 to January 2021, Donald Trump was head of the executive branch. Even documents as sensitive as battle plans or military capability explanations were created by members of the executive branch, subordinates of the president. Those documents were created for the executive. If that is the case, it is hard to understand how there could be “no universe” in which those documents are Trump’s documents. 

Robert Barnes, in the video referenced above, makes the same arguments starting with referring to this entire prosecution as bogus (5:30), as it cannot proceed in the face of the President’s plenary power under Article II. He also says, and it is my judgment after studying quite a few materials related to this case and the way it has been handled by the Department of [in]Justice that he is entirely correct, that this is nothing less than an attack on our Constitutional Republic by the Deep State in which they are saying they get to say what is classified and what is not and also whether the President is authorized to keep documents he wants to keep and if your elected President decides to tell you any of these secrets they -the Deep State- will send him to prison. He terms this the most dangerous case in American history. I agree.

The Rubicon Has Been Well and Truly Crossed. Is This the End Game?

230 years of history, tradition and protocol have been irreparably and savagely breached by the organized crime unit a/k/a the Department of Justice and its hired street thug and hatchetman, a person with a proven record of ruthlessly pursuing, and destroying, persons, families and reputations. There must be an overwhelmingly powerful reason this bevy of foul forces has been set loose by these wretched people. The members of the Deep State who have orchestrated this hit upon the former President of the United States are simply terrified that Donald John Trump will be elected to another unfettered -key word that- term in which he will do everything in his considerable power to bring them down. They will do anything to stop him. This persecution proves that beyond any reasonable doubt.

It is existential for them.

And for us.

This is the end game.