Former President Donald Trump has become the first former President to be indicted on federal charges and Joe Biden has become the first President whose Administration indicted a leading political opponent. Unfortunately neither individual is deserving of either derogatory label since this indictment should have never happened.
On June 8th, the Biden Administration’s Department of Justice headed by appointee Merrick Garland, indicted former President of the United States Donald J. Trump after special counsel Jack Smith convinced a Grand Jury there was satisfactory probable cause to vote for a True Bill (to indict).
The following day the indictment (23–8101-CR) was released and contained 37 counts against Trump and 1 count against former Naval officer and Trump aide Waltine Nauta.
Nauta is also named with Trump in 5 counts, 32 through 36.
Within minutes, news personalities, politicians, and social media was saturated with opinions from the left, that Donald Trump was guilty, the indictment was a bombshell, a smoking guns, and Trump was all but convicted for Treason while a similar group of individuals on the right had the exact opposite response to the indictment claiming it was a witch hunt and an election interference commissioned by Joe Biden in the weaponization of the Department of Justice (DOJ).
Both groups of opinions were ridiculous given the implausibility of an analysis in the amount of time required to property formulate a legal opinion with any degree of accuracy or realistic expectation of interpretation in a court of law.
This is an analysis of the federal indictment of former President Trump which led to 50 reasons why Trump’s federal indictment is frivolous and lacks legal basis.
Federal Indictment Analysis
The indictment outlines 38 counts total, 37 of them against the former President. Only one charge has any plausible basis in law and that’s the charge against Nauta for allegedly lying to the Federal Bureau of Investigations (FBI).
The indictment is filled with misinterpretations of the law, inaccurate information, and omissions of relevant regulatory statutes and case law.
Grand Jury
It’s obvious why Jack Smith was able to convince a Grand Jury to issue a True Bill because at it’s face, this indictment sounds legitimate. This is why Democrats are plastering “READ THE INDICTMENT” everywhere.
However, this practice in this case is comparable to convincing a Grand Jury to indict an individual for breaking and entering by showing overwhelming evidence, witness testimony, and a clear video of the individual breaking into a home, which sounds legitimate.
The Grand Jury would have no option but to issue a True Bill, but only because they were not told the individual actually leased the property and lives there, having only locked his keys inside of the home.
This is possible since it is only the prosecutor that is present during this process and needs only to convince a Grand Jury of probable cause. They can present evidence, witnesses, argument, and other testimony without any counterargument, cross-examination, argument, or defense. This is exactly why, and where, the term “you can indict a ham sandwich” comes from.
The following is the list of legal issues with this indictment and fifty reasons this indictment is frivolous by law.
Reason 1 — Section (Introduction), subsection (4) is inaccurate
The indictment fails to exceed page 2 without asserting false information.
At 12:00p.m. on January 20, 2021, Trump ceased to be president. As he departed the White House, TRUMP caused scores of boxes, many of which contained classified documents, to be transported to the Mar-a-Lago Club in Palm Beach, Florida, where he maintained his residence. Trump was not authorized to possess or retain those classified documents. — § Introduction (4)
There are several issues with this statement.
Reason 2 — Incorrect presentation of facts
The most obvious fabrication is that Trump left the White House at 8:00a.m. on January 20, 2021, while he was still President and as President he had exclusive responsibility of control and custody of all Presidential records, classified or otherwise.¹
Any action by Trump that caused a shipment of boxes to Florida containing classified information where done as President and this is fully within his executive authority.
The indictment strategically words this as Trump ceased to be President at 12:00, the subsequently followed with “as he departed […] caused scores of boxes…”.
Both statements are individually true, however by concatenating them as Smith has done, the indictment presents the illusion of the interpretation that Trump left at 12:00 after he was no longer President. However, at this point in time, he was already in Florida.
Reason 2 — Omission of federal provision
The second part which states that Trump was not authorized to possess these documents, is false. While there is no provision for exclusive or long term possession in a custodial sense, short-term possession and availability of these records to a former President is a provision for the duration of the life of the former President. To insinuate Trump was not authorized to access these records is disingenuous.
Under the Presidential Records Act² (PRA), former Presidents are exempt from all restrictions of access to records during his term and they must be made available to not only the former President, but anyone a former President designates as a representative³ or a staff member for the process of reviewing and transferring Presidential records.
Presidential records, regardless of classification, are under the exclusive legal authority of the President while in office. After his term ends, the National Archives and Records Administration (the Archivist) assumes responsibility⁴ and legal custody, however, the physical transfer of documents is not an instantaneous process magically materializing the documents at a NARA facility nor do they instantaneously gain physical custody of all records since that would defy the laws of physics and as such, is rather implausible.
NARA said the exact same thing in February in 2021.
“As NARA anticipated, the process of completing the transfer of Trump presidential records into NARA’s physical custody is still ongoing […] Necessary funding from [the Office of Management and Budget] was delayed for many weeks after the election, which caused delays in arranging for the transfer of the Trump presidential records into NARA’s custody. Even though the transfer of these records is ongoing, NARA assumed legal custody of them on January 20, 2021, in accordance with the Presidential Records Act.”
Reason 3 — Misinterpretation and omission of federal statutes.
The third allegation that Trump was not authorized to retain these records is absolutely false. Not only was Trump authorized to retain these records, he was legally required to do so under the PRA until which time the records can be transferred to NARA or a Presidential Library. (See References 1 and 4)
Subsection (4) of the introduction is both incorrect and meaningless. Trump was still President when he left the White House and had exclusive authority over all records which completely negates the point, however, even if he hadn’t, he was legally responsible for preserving the as mandated by the PRA until they were transferred to NARA at which point he is no longer liable.
Reason 4 — Circumstantial assumption
Subsection (5) of the Introduction, 23-8101-CR § Introduction (5) makes a claim of storage which is an assumption premised with no evidence. Nevertheless, even if this is correct, it’s irrelevant.
Reason 5 — Disregard of federal provision
Subsection (6) of the Introduction, 23–8101-CR § Introduction (6), makes two claims of disclosure without evidence of information retention that would support a reasonable threat of injury, nor proof of any intent to injure the United States, however, this is moot on it’s face under the provisions of 18 USC 22 § 2205(3) which Smith fails to acknowledge.
Reason 7 — Unlawful retention claim is erroneous
This is one of the largest issues with this indictment. The FBI opened a criminal investigation into the unlawful retention of records prior to the allotted 30-month period expected (as written in law) for the records to be fully transferred to NARA according to 23–8101-CR § Introduction (7). However, these documents can not be reasonable considered “unlawfully retained” until July 21st, 2023.
The FBI, Jack Smith, and even NARA ignore the expectations outlined in the Former Presidents Act⁵ (FPA). On June, 9th, 2023, NARA posted a web page regarding the FAQ’s of the Presidential Records Act.
There is no history, practice, or provision in law for presidents to take official records with them when they leave office to sort through, such as for a two-year period as described in some reports.
Which also appears to be the understanding of Smith, and the justification under the PRA the FBI acted under and while technically true, there is no provision in law for former Presidents to take records with them in the PRA, there is no prohibition of it either. However, this is irrelevant since there is a provision for Presidents to move documents and Trump was President he departed the White House.
NARA denouncing a 2-year timespan is also blatantly disingenuous. This statement is technically true only because the duration is 2 and a half years. They strategically, or ignorantly, fail to mention the 30-month expectation of time for review and transfer of records to NARA as written in law.
Not only is this expectation written in law⁶, it is their parent agency, the General Administrations Office (GSA), who provides the funding for this activity and in excess of normal staff salaries. The normal salary cap of $96,000 per annum is increased to $150,000 for staff specifically hired to facilitate this effort.
…the aggregate shall not exceed $96,000 per annum, except that for the first 30-month period during which a former President is entitled to staff assistance under this subsection, such rates of compensation in the aggregate shall not exceed $150,000 per annum […] used to pay fees of an independent contractor […] for the review of Presidential records of a former President in connection with the transfer of such records to the National Archives and Records Administration or a Presidential Library without regard to the limitation on staff compensation set forth herein.
This is not an explicit provision of time, nor a limitation of time as in a prohibition. It is a reasonable expectation written in law which mandates GSA funding for the former President for this activity.
Due to the Presidential exclusive authority and NARA’s lack of any authority, the two parties have been expected to work together in good faith, so there has been no reason for any further regulation and only a few concerns requiring judicial review over the past 40 years and those came by way of external plaintiff’s.
This also indicates that the investigation by the FBI, DOJ, and Jack Smith were all unlawful before July 21, 2023, which is over a month after the date the indictment was filed. Not one single document can be reasonably considered unlawfully retained, which notably, is only a civil offense under the PRA.
NARA also misstates the law in answering the question regarding the timeframe in which a President has to review and transfer records.
The Presidential Records Act (PRA) requires the President to separate personal documents from Presidential records before leaving office. 44 U.S.C. 2203(b).
However, that is false. What the PRA actually says is that the President should do this when and if feasible to do so during the term, it does not mandate this and regardless, this is irrelevant to the question asked since the statue lacks any specification of time that NARA, a President, or a former President has to accomplish this task.
That said, as it is a reasonable expectation for this task and it is also a reasonable expectation for this task to be complete on July, 21st, 2023, so it could be reasonably assumed that Trump would be willingly and unlawfully retaining Presidential records after this date just as it can be reasonably assumed that Trump has until July 21st, 2023 to complete the task.
Reason 9 — Reasonable margin of error
Subsections 8 through 10 allege that Trump intentionally engaged in activity to refuse the “returning of documents”, however, there is no “returning” anything since nothing was “taken” to begin with. These documents never existed in the physical custody of NARA, where they are ultimately expected to reside around July 23, 2023.
Smith tries desperately to pain a picture of “conspiracy” and “obstruction”, but neither have validity since the “investigations” were not lawful to begin with. Even if given the benefit of the doubt under the assumptions they were lawful, the margin of error is more than reasonable.
Smith is a trained illusionist per say. All attorneys are. They have to present an illusion of guilt or innocence despite the facts or the truth. That is why innocent people are sometimes convicted and guilty people sometimes walk free.
According to the evidence presented in the indictment itself, an alleged 31 classified documents were “taken” with the return of these documents “refused”. In total the FBI found 102 documents of concern, 17 were Top Secret, 54 were Secret, and 31 were confidential, however, Smith alleges only 31 of those were defense related records.
Using some basic mathematics, a proportional understanding can be equated.
- One average sheet of paper = 8.5" x 11" x 0.0037" = 0.34385 cubic inches.
- One file box = 15" x 12" x 10" = 1,800 cubic inches (roughly 1 cubic ft)
- Documents = 1800 ÷ 0.34385 = 5,234
The quantity of documents that would fit into a file box, is determined by dividing the box volume by the document volume, as shown above, 1,800 cubic inches divided by 0.34385 inches.
To account for folders, various paper thickness, and other miscellaneous materials, this can be divide by 2 to make it simple. 5,234 divided by 2 is 2617 and approximately what manufactures of these boxes states as storable volume (around 2500).
The complete equation is n where page dimensions are lwh(0) and box dimensions are lwh(1) and b = the box quantity:
The FBI seized 33 boxes, that equates to 86,361 documents. Previously Trump had handed over 15 boxes which adds 39,255 documents and NARA said they had 4700 cubic ft. of documents which is 11.75 million documents for a grand total of 11,875,616.
31 documents out of 11,875,616 comes to 0.000003 percent.
31 out of 86,361, the amount of documents seized (estimated), is 0.000359 percent where the normal rate of human error would have missed 836 documents.
The subpoena mentioned in the indictment was issued on May 11, 2022, and it did not demand or request any specific document or documents that were “missing” or “unaccounted” for contrary to news media reports, rather it was a blanket order in search of any document that might be there. It was an exploratory inquiry which is not a provision under the PRA.
To put that into perspective, the subpoena requested that Trump search through 86,361 documents and return any with markings of:
Top Secret, Secret, Confidential, Top Secret/SI-G/NOFORN/ORCON, Top Secret/SI-G/NOFORN, Top Secret/HCS-0/NOFORN/ORCON, Top Secret/HCS-0/NOFORN, Top Secret/HCS-P/NOFORN/ORCON, Top Secret/HCS-P/NOFORN, Top Secret/TK/NOFORN/ORCON, Top Secret/TKJNOFORN, Secret/NOFORN, Confidential/NOFORN, TS, TS/SAP, TS/SI-G/NF/OC, TS/SI-G/NF, TS/HCS-O/NF/OC, TS/HCS-O/NF, TS/HCS-P/NF/OC, TS/HCS-P/NF, TS/HCS-P/SI-G, TS/HCS-P/SI/TK, TS/TK/NF/OC, TS/TIQNF, S/NF, S/FRD, S/NATO, S/SI, C, or C/NF.
Extracting, reviewing, and cross-referencing document markings with the 31 different document marking types named in the subpoena takes approximately 60 seconds and that’s being generous as it would take most people longer. At that rate, if an individual worked non stop without breaks or sleep 24 hours a day, 7 days a week, it would take 2 months to go through all 86 thousand documents. At an average 40 hour work week, which is 2400 minutes, without any breaks and working nonstop, this would take over 8 months.
With 3 dedicated staffers working on this nonstop without breaks or consults, this might be able to be accomplished in 3 months, however it’s unlikely. This is also exactly what the provisions in the FPA for staff for the 30-month duration appear to be for.
Notably, there is no other apparent reason for this provision in applicable law available to Trump or his attorney at the time of his departure, however, if one does exists somewhere, it’s irrelevant since it is a valid argument that Trump and his attorneys made this assumption because it is a reasonable assumption and as such, there is no possible intent that can be argued as required by charges filed under the Espionage Act.
The indictment notes two staffers and the GSA for fiscal year 2021 listed $144,000 paid in staff salaries, but there is no indication of exactly how many staffers Trump had during that time.
The FBI raided Trump’s residence on August 8, 2022, only 89 days days after the subpoena. Less than 3 months. It is not physically plausible to successfully and accurately review that amount of documents within that timeframe and the fact that there were only 31 records that weren’t located is not only well within a reasonable margin of error, it’s an astonishing accomplishment.
Calling a failure to locate 31 anonymous documents in 89 days an obstruction, concealment, refusal, or any other conclusion is simply ridiculous and unsupported by any federal regulation or basic common sense given the volume of documents. This is especially true given the majority of the records were found.
Reason 8 —No legal basis
Smith relies heavily on Executive Orders governing classifications of documents, however, it has been held repeatedly that Presidents indeed do have the power to classify and declassify however they wish to.
The American Bar Association argues that Trump’s claim of just “thinking about a document can declassify” is not without legal merit⁷.
Moreover, Supreme Court case Navy v. Egan⁸, held that Article II, Section 2 of the U.S. Constitution grants a President of the United States this very broad authority.
If Trump says a document was declassified, it most likely has to be legally considered declassified and there’s nothing anyone can do to claim otherwise. He is not required to abide by an Executive Order related to declassification nor does he have to document the declassification in any specific way with the exception of certain records covered under the Atomic Energy Act of 1954⁹ and National Security Act of 1947¹⁰ that have additional declassification procedures.
Smith accurately states that Trump is unauthorized to access classified documents after his Presidency, however, this does not apply to Presidential records from his term (See Reference 3) which includes any and all declassified documents regardless if they were created by another agency.
Smith claims Executive Order 13526 requires a former President to obtain a waiver to access classified records from his presidency since a former President is a private citizen, however, this is absolutely false.
EO 13526 does not apply to Trump because the PRA mandates that all Presidential records from the term must be made available to former Presidents. Since this is a congressional law and executive orders cannot override or reverse congressional laws due to limitations under the Constitution, it is inapplicable.
Note that any document that was received, utilized, signed by, or involved a former President is a Presidential record, including defense records, if the President categorizes it that way, otherwise, its considered a personal document.
Smith continues on for 24 points outlining various classified documents that were retained, yet, does not allege any document was destroyed or altered (which would be unlawful). Every single point is irrelevant given the foregoing.
There is not a single syllable of legal basis for any of these points.
Reason 10 —Evidence provided sides with the defendant
On page 15, subsection (34) of the Introduction section, 23–8101-CR § Introduction (15), Smith introduces evidence of a tape recording and outlines the conversation. This is the evidence claimed to support the claims on page 2, 23–8101-CR § Introduction (6), which was intentionally not mentioned in this analysis until this point due to the reliance on this subsection (15). In subsection (6), Smith alleges Trump allowed a writer to access classified material.
TRUMP showed and described a “plan of attack” that TRUMP said was prepared for him by the Department of Defense and a senior military official. TRUMP told the individuals that the plan was “highly confidential” and “secret.” TRUMP also said, “as president I could have declassified it,” and, “Now I can’t, you know, but this is still a secret.”
Which, in this wording, sounds incriminating, however when put in the full context as it is in subsection (15), the true nature of the conversation is revealed and in no way supports Smith allegations. There is no audible evidence that Trump showed anything to anyone. He is discussing it, however, there is no evidence he has shown any portion of the document to the writer.
Moreover, it is clear that he just discovered the document indicating he was unaware it was in his possession. This is evidenced by words spoken to his staffer in addition to saying it directly. The portion of the conversation mentioned in subsection (6) is taken completely out of context. Trump did say “as president I could have declassified it,” and, “Now I can’t, you know, but this is still a secret.”, however, he said this directly after asking his staffer about its classification and while he awaited a response from his staffer.
During that wait for a response clarifying the classification level of the document, he mentioned the fact that he could declassify the document when he was President but he couldn’t now.
This evidence, meant to support an allegation against Trump, clearly and fully contradicts that allegation when reviewed in full context.
Regardless, Trump has the legal right to disclose the document if he wants to regardless of E.O. 13526 which would not be applicable to the writer or publisher either if Trump claims he was a representative. This is true for the subsequent subsection (35), none of which matter anyway because as already exampled, there is not possible way to argue an intent which is required.
Astonishingly, Smith does not allege unlawful access or lack of clearance by Trump himself, which is the correct interpretation of the PRA. Rather, subsection (34) claims unlawful access by 2 staffers of Trump, which is absolutely false, they are representatives of Trump and as such, covered by the PRA and even if they weren’t again the intent issue prevents a legal basis for this allegation.
Subsections (36) through (46) state continued actions of Trump and his aide that are either irrelevant to the case or outright irrelevant.
Reason 11 — Lack of jurisdiction
Subsections 23–8101-CR § Introduction (48)-(49) indicate NARA received the documents the requested (See Reason 9) and despite this being completely within the law, decided to refer the receipt of these documents to the DOJ for investigation.
Setting aside the foregoing durations of time which render these investigations unlawful, NARA has absolutely no prosecutorial authority nor does any provision of the PRA allow NARA to disclosed these documents without the former Presidents approval. It’s not clear whether or not Trump had these particular documents under non-disclosure but NARA can only disclose material to federal agencies under the following conditions¹¹ and only if the invoked by that agency.
- pursuant to subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding;
- to an incumbent President if such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available; and
- to either House of Congress, or, to the extent of matter within its jurisdiction, to any committee or subcommittee thereof if such records contain information that is needed for the conduct of its business and that is not otherwise available; and
With exception to NARA themselves, and the former President, or his representatives, these are the only exemptions provided under the PRA for disclosure and regardless of Trumps disclosure governance since there is a mandatory period of 5 years during which time no document can be disclosed unless they meet one of the three outlined conditions.
As previously mentioned, NARA has absolutely no authority whatsoever over anyone or any agency, they lack the basic authority to declare a document one that they are responsible for¹². In the federal case Judicial Watch, Inc. Vs. NARA, Judge Amy Jackson ruled that “the PRA does not confer any mandatory or even discretionary authority on the Archivist to classify records”.
Continuing, 23–8101-CR § Introduction (52)-(62) then returns to providing more irrelevant information related to boxes, moving boxes, and things said about boxes and things said about moving boxes under the title of “Concealment of boxes” which has already been addressed in Reason 8.
In these subsection, Smith is desperately trying to project an illusion of concealment and withholding where one does not exist as his own evidence proves. Throughout the indictment Smith tells a long drawn out story about how Trump kept moving boxes around and going through them evidenced with conversation like the following.
Nothing about boxes yet
He has one he’s working on in pine hall
Knocked out 2 boxes yesterday
Smith tries to use this and moving boxes around to evidence concealment and withholding however, this is clearly evidece of Trump reviewing and preparing for transfer the records as outline in the FPA.
Reasons 12 through 42 — No legal basis for indictment
After telling the story of the raid on Trump’s residence, the indictment lists the counts.
Counts 1 through 31 — Willful retention of National Defense records.
First, this is duplicitous, the count alleges multiple offenses for the same offense. There is one action under which 31 documents were affected, there are not 31 individual actions.
These counts have absolutely no legal basis since Trump was within the expectation of time for reviewing and transferring these documents and the documents were Presidential records, regardless of any label as defense records. Trump was and is fully authorized access to these records for the duration of his lifetime and there is no law that prevents this access or possession, intentionally or otherwise, during the timeframe during which he had them.
Even if there was legal basis, these counts require¹³ the possessor to have “reason to believe could be used to the injury of the United States or to the advantage of any foreign nation” which is already disproven.
Notably, in the aforementioned case mentioned in Reason 11, which has gone unchallenged for over a decade, Jackson held that a President has full authority over records.
the President enjoys unconstrained authority to make decisions regarding the disposal of documents: […] neither the Archivist nor Congress has the authority to veto the President’s disposal decision.” Id., citing H.R. Rep. №95–1487 […] Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office, 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.
She clearly states that a President has full uncontestable control over what he considers to be a Presidential record or personal record and full control over his personal records which the PRA gives former President exclusive and complete control over.
Notably, this case was in regards to former President Bill Clinton retaining records that contained classified information.
Reason 43 — No legal basis and omission of lawful provisions
Count 32 — Conspiracy to Obstruct Justice
As has been explained, no investigation was warranted or lawful and such, there was no justice to obstruct. Furthermore, the evidence presented is well within a reasonable expectation given the result delivered the amount of documents well beyond an average margin of human error indicating a reasonable effort, however, none of this was required to begin with under the PRA and FPA.
Reasons 43, 44, 45, and 46 — No legal basis and omission of lawful provisions
Count 33 — Withholding a document¹⁴
The first statute Smith uses to support the count is irrelevant since the investigation was not lawful, however, if it were, this requires intent, which is almost impossible to prove, and in this case, already disproven. not to mention Reason 11 which disproves this as well.
The principals statute is also irrelevant since Trump would not be in violation of any criminal law under this statute had he done what his attorney did.
Count 34 through 36 (See references 15, 16, and 17) all have the exact same problem and lack of legal basis that count 33 does and for the exact same reason, it requires intent that would be almost impossible to prove if it were even valid, which it is not, and has already been disproven regardless.
Reason 47 — Unreasonable expectation and lack of legal basis
Count 37 — False statements¹⁸
Smith alleges Trump caused his attorney to provide a false statement to the FBI because 0.000359 percent of the records were not found.
There was no statement provided that claimed that every single document had been categorized and accounted for. Rather these statements were certified:
- A diligent search was conducted of the boxes that were moved from the White House to Florida”;
- “This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena”; and
- “Any and all responsive documents accompany this certification.”
The mere fact that all but 0.00359% of the documents were located over a year before the expected timeframe for which they were to be located and transferred makes this statement almost impossible to prove as a false statement. Smith is really reaching on this one because that evidences a “diligent search”. The fact nearly 40 additional documents were transferred evidences its execution post receipt of the subpoena, and the documents themselves evidence the 3rd statement.
One Valid Count — Reason 48
There appears to be one plausibly valid count and that is count 38 for False Statements and Representations¹⁹ because despite the investigation being likely unlawful, an individual is still not allowed to lie to the FBI when officially questioned. They do not have to answer, but they cannot lie, it is a federal offense. If there is undeniable evidence that this occurred, then this count appears to have a legal basis.
The problem here (and reason 48) is that this count is not charged against Trump, rather it’s charged against Waltine Nauta. While this in itself doesn’t make the indictment any more frivolous, this is an analysis of the indictment of Trump, not Nauta, and as such, this count is inapplicable in that regard.
Reason 49 —Existing federal case law favors Trump unequivocally
One of the biggest issues with this entire indictment, despite the fact there is not one lawful count against Trump and the fact the FPA does allot provisions to retain those particular records at the time Trump had them, is the aforementioned case of Judicial Watch, Inc. Vs. NARA where the following was held.
- President has absolute authority over records, their disposal, and their classification, which is also clearly a provision of federal law²⁰.
- NARA has absolutely zero authority to categorize or classify Presidential records.
- Courts have little to no judicial review of categorization decisions of a President
- NARA has no authority to obtain custody or control over any record under the provisions of the PRA
- NARA has no authority over any material it does not have physical custody over.
- NARA is not mandated by the PRA to gain custody and control over Presidential records
- NARA only assumes responsibility for the custody and control over Presidential records.
The court construed “this language as requiring the Archivist to take responsibility for records that were designated as Presidential records during the President’s term” and that “If certain records are not designated as Presidential records, the Archivist has no statutory obligation to take any action at all”
In Trump’s case, NARA did not list “missing” documents that it had knowledge of that Trump categorized as Presidential records, rather it sent a blanket order, by way of subpoena, requesting a search for any documents that may exist with certain markings that could be considered Presidential records since they were classified at one point as national defense records. If those documents were not explicitly categorized as Presidential records or Trump had plans to destroy them or claim them as personal records, then there is nothing NARA is mandated to do and nothing NARA has any authority to do.
The only action that can be taken is known records that a President categorized as a Presidential record and then took with him or misplaced. In that case, NARA can ask the DOJ to issue a subpoena for those specific records. Asking for a blanket order of any possible document as a discovery mission is not a provision of the PRA.
Reason 50 — The Supreme Court of the United States
If by some miracle this were to make it to court, which appears to lack odds as good as those for getting truck by lightning, mainly due to available case law which fully supports congressional law as written and favors Trump unequivocally.
Then by some miracle there was a conviction, which is plausible in southern Florida that is mostly Democrat, it would simply be appealed to the Supreme Court who would not only overturn the decision, they would solidify a Presidents absolute authority just as lower federal courts have already done.
This could be dangerous for Jack Smith, Merrick Garland, and even Joe Biden as it would make a case for election interference. NARA would not escape unphased either as they could held in violation of the PRA (civil offense) and more concerning, and facilitation of actions brought by any case arising from the above.
However, it is highly improbable this case will even make it to a trial and will very likely be dismissed on a motion for dismissal due to all of the above.
It may survive the first motion as the judge may want to hear arguments regarding what information the writer actually retained, if any, and what proof exists that Nauta lied. However, that will likely be presented in the counter argument to the motion to dismiss. There is little chance it will survive much longer with the exception of the charge against Nauta.
Notably, these same provisions, statutes, case law, and Supreme Court decisions apply to Joe Biden and Mike Pence as well, Vice Presidential records are treated in the same manner, so Joe Biden nor Mike Pence are subject to any probe, investigation, or charges. Donald Trump never should have been and this indictment shouldn’t exist.
Summary
This entire fiasco underscores my continued observation that the Democrat and Republican parties are a negative thing for this country.
This ridiculousness is a result of the two parties moving from politics and the exchange of ideas in search for common ground, to the primary goal of self-preservation of power hungry politicians who are willing to go to any length, break any law, and frivolously bring action against their opponents because American politics is no longer about serving the people, but a multi-billion dollar industry fueled by the gigantic corporations who line political pockets in exchange for favorable voting, funding, and contracts that ultimately make the rich richer.
The result of this?
We have a sitting President Joe Biden who became the 1st American President to join a very short list of leaders whose administrations arrested political opponents, a list includes the likes of Hitler and Putin. and we have the first former President joining a very short list of former leaders who have been arrested, the first American President to be indicted, and joining an even shorter list of leaders who have been indicted by their political rivals administration.
El Salvador President, Nayib Bukele, pretty much summed up the way the world views the United States.
Sadly, it’ll be very hard for US Foreign Policy to use arguments such as “democracy” and “free and fair elections”, or try to condemn “political persecution” in other countries, from now on
He’s not alone and this was before the federal indictment.
When I began this analysis, I was certain there’s was going to be at least several serious charges of inexcusable crimes that were so air-tight even Trumps biggest fans would turn on him.
Instead, before me lies an indictment with no legal basis supporting a single count against a former President. One that have multiple avenues of legal defense without process since there lacks a single lawful reason for any of the charges. That is just unheard of in a federal case.
Even when you remove provisions of law, decisions in case law, and Constitutional provisions as ruled by the Supreme Court, all of which individually evidence baseless charges themselves, and give Smith the total benefit of the doubt, there are still multiple reasons each count has no reasonable chance of conviction and it is unlawful to bring a case like that into a federal court of law.
The DOJ’s “Principles of Prosecution” state that federal prosecutors should move forwards with an indictment and prosecution only if they believe “the admissible evidence will probably be sufficient to obtain and sustain a conviction.”
I don’t think I have ever seen a criminal federal case so poorly premised by applicable law in that there is none at all. The indictment appears to be the result of either gross negligence or malicious intent and I have a difficult time believing the former of a Harvard educated lawyer.
Any attorney with a reasonable level of experience in federal law can read this indictment and tell you point blank that there is no chance in hell of sustaining a conviction and in the event of hell freezing over, it would simply be overturned in appeal.
There are only two counts that have any possible hope of a Judge hearing further arguments over, only one of them is against Trump, and it’ll take minutes for the defense to easily and convincingly refute it, assuming it even makes it that far.
While I see no evidence of this being a result of “weaponization of the DOJ” as Republicans claim and if Democrats understood the law, they certainly wouldn’t be calling for everyone to “read the indictment”, the case as it sits today, is frivolous and void of any legal merit as evidenced above and below.
It’s comically ridiculous.
References:
- Presidential exclusive authority— 44 U.S.C. 22 § 2203(f)
- Presidential Records Act — 44 U.S.C. Chapter 22
- Former Presidents access to records — 18 USC 22 § 2205(3)
- Archivist’s assumed responsibility — 18 USC 22 §2203(g)(1)
- The Former Presidents Act — Public Law 85–745 (3 U.S.C. § 102 note)
- 30-Month expectation of transfer— PL 85–745 (3 U.S.C. § 102 note) (b)
- 🌐 American Bar Association Legal Fact Check
- Department of the Navy v. Egan, 484 U.S. 518 (1988)
- Atomic Energy Act of 1954 — 2 U.S.C. §§ 2011–2021, 2022–2286i, 2296a-2297h-13
- National Security Act of 1947 — 50 U.S.C. ch. 15 § 401
- Exceptions to access — 18 USC 22 §2205(2)(a)-(c)
- Judicial Watch, Inc. v. Nat’l Archives & Records Admin., 845 F. Supp. 2d 288 (D.D.C. 2012)
- Possessor knowledge of injury requirement — 18 U.S. Code § 793(e)
- Withholding — 18 U.S.C. §§ 1512(b)(2)(A), 2
- Concealing 1— 18 U.S.C. §§ 1512(c)(1), 2)
- Concealing 2— 18 U.S.C. §§ 1519, 2
- Concealing 3–18 U.S.C. §§ 1001(a)(1), 2
- False Statements and Information — 18 U.S.C. § 1001(a)(2))
- Consulting a former President — 18 USC 22 §2203(g)(2)
- A President’s exclusive custody — 18 USC §2203(f)
- Image Credit: FalseFactCheck.org