I am a former assistant U.S. attorney, worked on two Supreme Court confirmations, and clerked for two federal appellate judges. I have reviewed the indictment brought by Special Counsel Jack Smith in the documents case against former President Donald Trump, and have serious concerns with the way this case is being framed in the public and with some aspects of the way the prosecution itself is being conducted.
Here are six major issues I see that need to be addressed by the special counsel’s team.
1. Interplay Between the Espionage Act and the Presidential Records Act
Others have already spoken insightfully about the scope of the Presidential Records Act (PRA). Mike Davis of the Article III Project has published and spoken on the subject, and Michael Bekesha of Judicial Watch had a fascinating article in The Wall Street Journal detailing his experience litigating the Clinton Sock Drawer Case.
Basically, their argument distills down to the idea that the president’s authority to retain personal records, as well as his rights to access his presidential records, make it impossible to prosecute him under the Espionage Act section at issue here, § 793(e), because the government cannot prove “unauthorized possession,” as required under the statute.
I want to make a different point relating to the intent element of the Espionage Act, the statute Trump is being charged under.
Section 793(e) requires the government to prove that the defendant knew he had National Defense Information (NDI) in his possession, knew there was a government official
