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Is There A Trump Card? An Analysis Of Donald Trump’s Indictments And His Defenses

Ilan Hulkower

“The executive Power shall be vested in a President of the United States of America”
- Article 2 of the Constitution of the United States 

“A government of laws, and not of men”
- John Adams 

On June 9th, a grand jury indictment was unsealed by a federal court that charged Donald J. Trump, the former President of the United States and President Biden’s likely leading political opponent for the 2024 election, with 37 counts of alleged felonies. Most of these counts revolved around charges of Trump’s willful retention of national defense documents under the Espionage Act and conspiracy to obstruct justice. This marked the first time in American history that a former president was criminally indicted on federal charges. 

This indictment was, however, preceded in April by New York state’s Manhattan District Attorney Alvin Bragg bringing 34 charges against Trump that accused him of falsifying his business records “in order to conceal damaging information and unlawful activity from American voters before and after the 2016 election.” It is inferred by many (although not named in the indictment itself nor the statement of facts) that the damaging information mainly concerned alleged hush money payments to Stormy Daniels, an adult entertainer. If found guilty of all (or some of the) charges in both indictments, Trump faces the prospect of spending the rest of his life (and then some) in jail

Nevertheless, it has already been established that a person can run for the presidency if convicted and jailed. Eugene V. Debs of the Socialist Party famously ran in 1920 after being (ridiculously) indicted and jailed under the Espionage Act for giving an anti-war speech. The perennial presidential candidate received nearly a million votes, which was the largest total number of votes he ever received. The winner of the 1920 presidential race, Warren G. Harding, commuted Debs’s remaining sentence as time served and released him from prison. When Debs turned up in the White House, Harding greeted the former convict with the words “I have heard so damn much about you.” 

Trump is a greater figure than Mr. Debs in that he is the likely Republican nominee and the main challenger to Mr. Biden. Not surprisingly given this fact, accusations are already flooding in that the investigations into Trump are politically motivated and cases of selective prosecution. This article will examine some of the defenses that Mr. Trump can raise to both indictments and explore the political effects that these court cases may have on his race for the White House. 

This article will first examine Alvin Bragg’s case. His case is itself riddled with problems and shoddy legal theory as evidenced by the mere fact that his office previously passed over it. Bragg, however, reconsidered and even campaigned for the District Attorney office boasting about investigating the former president. So shoddy is Bragg’s case that neither the indictment nor the statement of facts clearly articulates the underlying crime that Trump falsified his records over. As previously mentioned, it is largely assumed to be that Trump’s hush money constituted an illegal election campaign contribution.

Since Trump ran for federal office, this would be a federal offense rather than a state one. Bragg’s jurisdiction is over state-related crimes and not federal ones. Furthermore, the Federal Election Commission (FEC) already investigated the matter in question and dropped the case. The reason they may have done this is that even if Trump made these payments and it constituted a campaign contribution, the candidates themselves have no legal limit over how much money they can give their own campaigns. 

Additionally, should Bragg directly charge Trump with a violation of the Federal Election Campaign Act, he must prove that the hush money was used directly, and only, for campaign purposes and not because Trump wished to avoid embarrassment for himself or his family (or for literally any other reason). A similar indictment, with arguably a worse set of facts, of John Edwards, a former 2008 Democratic presidential candidate, failed to secure a conviction because Edwards was able to argue that the money he gave to his pregnant mistress was not election-related but to spare himself a humiliating fallout from his family. 

There are also serious problems with the potential witnesses against Mr. Trump. Stormy Daniels signed a document back in 2018 that denied any affair ever took place with Trump at all (but has since issued statements that contradicted said document). Trump’s former lawyer, Michael Cohen, who allegedly paid Stormy Daniels the hush money back in 2018 had his own lawyer write a letter to the FEC explaining that Cohen had acted on his own and that Trump was not a party to the transaction. Cohen is also a convicted perjurer

Bragg may have also committed violations of the New York rules of professional conduct in his handling of the prejudicial press conference announcing the charges against Trump. In this conference there were statements he made that did not accord the accused the presumption of innocence and failed to uphold several other ethical obligations toward an accused person that protects the right to a fair trial. There are plenty of reasons why one legal scholar called this case “the ultimate Frankenstein” and “patently political prosecution.” Other legal scholars also have deemed the case “targeted injustice” and “much thornier than it looks.” 

A Washington Post legal columnist, Ruth Marcus, admitted that Bragg’s case is “a dangerous leap on the highest of wires.” Marcus expressed a desire for Trump to suffer for his (undescribed) crimes to such an extent that she wrote: 

They [the Manhattan District Attorney’s office] could well win, and I hope they do, because a failure to secure a conviction will only inflame Trump and his supporters in their claims that the criminal justice system is being weaponized against them.

 She evidently failed or refused to comprehend that a conviction on such a weak legal theory as this would only reinforce the claim of political weaponization of the law. Her stance is like saying to state attorneys in the 1950's South that their convictions of civil rights activists will prove that the criminal justice system is not being weaponized against the activists and will demonstrate that blacks have civil rights. That is the absurdity of Marcus’s logic here.

Special Counsel Jack Smith’s case against Mr. Trump is more serious in its legal theory and more serious in what it is charging the former president with. Trump’s federal indictments are based on violations of the Espionage Act, through his willful retention of documents pertaining to national security and on conspiracy to commit obstruction of justice. While Smith charged that Trump stored “hundreds of classified documents” in his Mar-a-Lago home and that he was “not authorized” to have said materials, he did not directly charge Trump with unlawful possession of all these documents. 

Smith further detailed that Trump may have disclosed and/or shown some of the material to persons who lacked proper security clearances. In fact, one of the documents that Trump is charged with unlawfully possessing had no classified marking on it (see offense 11). It is necessary to add here that the 1917 Espionage Act preceded the modern classification system, which was only created in 1951 through executive order.

 The Espionage Act has a much broader reach of applying to all “national defense” information and its 1917 version applies to a violator who unlawfully obtains and possesses this information with the intention to harm the United States or benefit a foreign country. According to Smith’s legal theory, the former president was in violation of the Espionage Act since he possessed this and other documents after his presidency. (It bears noting that there is no charge that the former president had any intent of harming the United States or handing the material over to a foreign power.) 

Smith’s theory has some serious flaws to it. His treatment of Trump as just an employee of the federal government rather than as a former president has bearing here. For one thing, the President has the ultimate powers of (de)classification and can empower any individual with the ability to access any information. This power emanates from Article 2 of the Constitution that squarely places all executive power and privileges in the hands of the president. To put it another way, the unelected executive bureaucracies exist to serve the elected president and not the other way around. The president is not bound by the internal bureaucratic rules of his own branch. For instance, executive orders are binding on the executive branch but not on the president who can change them at will. 

The Supreme Court itself has commented on the president’s powers of classification and his ability to empower anyone to view said material. In the Department of the Navy v. Egan (1988), they ruled that: 

The President, after all, is the "Commander in Chief of the Army and Navy of the United States." U.S.Const., Art. II, § 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant. 

The president can through various means declassify material and share it. Such is the president’s power that they do not have to follow the formal process of declassifying documents or materials.

This is the case even when the president takes said materials as his post-White House private records. Here too there is court precedent. There was a case involving 79 audiotapes, some of which contained sensitive national security related information, were discovered in Bill Clinton’s sock drawer and that Clinton did not previously give to the National Archives and Records Administration (NARA). Clinton had also shared these tapes with a historian. The judge in this case ruled in Judicial Watch v. NARA (2012) that: 

NARA does not have the authority to designate materials as “Presidential records,” NARA does not have the tapes in question, and NARA lacks any right, duty, or means to seize control of them…the Court has seriously doubts about whether the former President’s retention of the audiotapes as personal is a matter that is subject to judicial review. But the Court need not decide this question because whether judicial review is available or not, the relief that plaintiff seeks – that the Archivist assume “custody and control” of the audiotapes – is not available under the PRA…the PRA does not confer any mandatory or even discretionary authority on the Archivist to classify records. Under the statute, this responsibility is left solely to the President.

The act cited in the court is the Presidential Records Act of 1978")(PRA), which distinguishes between presidential records and private records of a president. If a document is classified as the former, it is placed in public ownership under the care of NARA, whereas if it is the latter record status it remains the personal property of the outgoing president. 

However, even if Trump’s documents were presidential records, the PRA decrees that “the Presidential records of a former President shall be available to such former President or the former President’s designated representative.” In effect he is entitled to have access to them and to have representatives in his stead access them. As noted in Clinton’s case, NARA does not control what ultimately qualifies as a presidential record or a private one. The person who does is the outgoing president. 

This presidential prerogative and its consequences have been further noted in a 2019 Congressional Research Service report. This report declares that: 

[T]he President has a high degree of discretion over what materials are to be preserved under the PRA…. As noted previously, whether these records are classified as presidential or personal records affects public and congressional access to such materials. For example, the PRA does not provide an access mechanism for personal records.

Finally, even if Trump were somehow in violation of the PRA through his possession of these documents, the statute is not criminal. As noted by NBC 15 News, “[t]here are no criminal penalties or an enforcement mechanism associated with this law.” Nowhere in the indictment of Trump is the PRA cited, nor does Smith try to explain why this provision is irrelevant. 

This may be the prosecution’s fatal flaw in his whole theory since the records at Trump’s home are records from his own administration and Trump in one form or another is entitled to access to these records. If the Espionage Act applies when ex-presidents have mishandled records containing information about national defense, then practically all previous presidents should have been prosecuted under this law. The fact that none of them were is indicative of the novelness of Smith’s theory and highlights its selective application. Indeed, even recent scandals about purportedly classified documents being found in the homes or offices of former vice presidents (who have less legal protections than presidents) and the decision to close the investigation surrounding Mike Pence also further highlights the selectivity issue. 

If Trump committed no crime by storing the documents at his home as his private records, then the Department of Justice (DoJ) may face another problem with their indictment. This being that a 2019 DoJ memo, that according to one former Supreme Court clerk and counsel to the Senate Judiciary Committee is “binding”, proclaims that it is generally acknowledged that the DoJ should not charge someone with obstruction of a non-crime. Page 6 of the memo states that: 

Such a prosecution [of obstruction charges] is doubly inappropriate where, as here, the conduct under investigation is lawful on its face, and the evidence of any corrupt motive is, at the very least, questionable. Federal criminal statutes should be construed to avoid criminalizing generally innocent conduct [emphasis added].

Special Counsel Smith will likely need to address such defenses. He will also need to avoid the appearance of political prosecution. 

Given Smith’s record this will be difficult to do. Smith previously helped to illegally weaponize the Internal Revenue Service against organizations that his superiors felt did not deserve tax exempt status based on their political affiliation. A few of his notable prosecutions of American politicians displayed his attempt to stretch the law. The Supreme Court in a 8-0 decision overturned the guilty verdicts of Bob McDonnell, a former governor of Virginia, on account that Smith took an overly broad interpretation of bribery statutes which if applied “would likely chill public officials’ interactions with their constituents due to fear of persecution.” Jack Smith was also involved in the aforementioned lawsuit against John Edwards that resulted in a mistrial and the government dropping all charges. 

Potential major problems of bias also enter into the equation due to the Federal Bureau of Investigation (FBI) unit that was chosen to conduct the raid on Mar-a-Lago. This was the same unit that was implicated in an earlier discredited investigation of Mr. Trump on accusations of Russian collusion. There is a litany of evidence that the unit broke with its own professional, ethical, and legal obligations during the course of the Russia-gate investigation. For example, one agent involved in the investigation illegally altered evidence to obtain a warrant. 

It has been observed that the raid on Mar-a-Lago was unusual in many respects. These unusual observations are that the FBI in DC - rather than the local FBI unit - was the lead in the investigation and search of Trump’s residence; that the FBI did not first seek consent to search Trump’s premises despite the local office’s belief that Trump would have been cooperative; that there was no US attorney office that was assigned to the matter; and that the FBI did not wait for Trump’s lawyer to appear before starting the search. Furthermore, despite Attorney General Merrick Garland’s promise that his department “will speak through its court filings and its work”, prejudicial material regarding the investigation was leaked to the press. Such leaks could have come either from the DoJ or the White House. These are just some of the defenses that Trump’s legal team can use to counter Smith’s indictment.

This is not to say that there is no chance of conviction of the former president on either indictment. Merely that the legal theories behind them will hopefully be adequately addressed by a judge or jury in a way that does not suddenly flip legal standards based on the defendant. The Constitution is above any person and one ought to be afforded all due defenses that can be legally mustered against their accuser. 

What these indictments have done politically for Trump is to reinforce the sense that many of his supporters have that the man is being unjustly and selectively prosecuted. Each indictment has rallied the Republican base to him. The reaction by anti-Trump new outlets like CNN and MSNBC to not air live unvetted footage of Trump after his latest indictment live was done purportedly out of their concern that he may say untrue things. This only further underscores the point that they are prejudicing their audience toward him and his cases. The United States now joins the rank of countries like Turkey and Pakistan, where leading political challenger(s) to the incumbent find themselves saddled with legal issues by the government. It is not a bright day for American democracy.

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