excalibur
Diamond Member
- Mar 19, 2015
- 18,158
- 34,397
- 2,290
A long piece worth reading. I have excerpted a some here.
technofog.substack.com
...
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:
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:
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.
This is where the Presidential Records Act enters the picture as a potential source of confusion that will likely be advanced by the Trump legal team to show a lack of “willfulness” with regard to records that Trump retained — even IF his continued possession after January 20 was “unauthorized.”
The definition of “willfulness” in the context of Sec. 793(e) is well established in numerous cases because many inferior executive branch bureaucrats have been prosecuted for having unlawful possession/retention of NDI materials.
Not every federal crime includes a requirement that the defendant acted “willfully”. This is different from “intent.” All that is meant by “intent” is that your conduct — your physical actions — were deliberate and not the result of some mistake or involuntary movement, i.e., you walked into the building on your own, you weren’t dragged inside by others.
...
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:
- The defendant had unauthorized possession of a document;
- The document related to the national defense; and
- The defendant willfully retained the document and failed to deliver it to the officer or employee of the United States entitled to receive it.
- Unauthorized
- Possession
- Document
- National Defense
- Willful
- Retained
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:
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.
This is where the Presidential Records Act enters the picture as a potential source of confusion that will likely be advanced by the Trump legal team to show a lack of “willfulness” with regard to records that Trump retained — even IF his continued possession after January 20 was “unauthorized.”
The definition of “willfulness” in the context of Sec. 793(e) is well established in numerous cases because many inferior executive branch bureaucrats have been prosecuted for having unlawful possession/retention of NDI materials.
Not every federal crime includes a requirement that the defendant acted “willfully”. This is different from “intent.” All that is meant by “intent” is that your conduct — your physical actions — were deliberate and not the result of some mistake or involuntary movement, i.e., you walked into the building on your own, you weren’t dragged inside by others.
...
The Espionage Act and the Presidential Records Act
An evidentiary burden Special Counsel Smith may not win
technofog.substack.com
