top of page

Trump's Malicious Indictment Is Prosecutorial Misconduct

Updated: Aug 31, 2023

Recently, the public has been inundated with stories, posts, and discussions about the

latest Trump indictment by the Biden Justice Department (DOJ). Two areas being

probed and attempting to penetrate, perhaps in a desperate effort to get at least “one”

count to “stick.”  Their attempt is to claim President Trump violated the Espionage Act

of 1917. 

The “Espionage Act” has no relevance to anything former President Donald has

done.  In fact, Trump, as does any other president in modern times, has been protected

by the Presidential Records Act (PRA) of 1978.  

The PRA provides broad authorities to the President of the United States (POTUS) for

maintaining in his possession official federal documents, materials and information

pertaining to his administration. Further, the PRA provides authority to a President to

declassify information for whatever reason chosen.  Certainly, since Jimmy Carter, all

presidents have been protected by the PRA and there has been no real issues until now.

A number of constitutional lawyers most recently - Tom Fitton, Mike Davis, Alan

Dershowitz and numerous others - have articulated concerns and criticisms over DOJ’s

indictment against President Trump, issuing their own extensive legal analysis. 

Of all their analysis, two single issues standout most: 

 The Indictment dishonestly ignores the U.S. Constitution, the PRA, legal

precedent, the DOJ and U.S. Archives' previous positions that the White House

records a president takes with him when he leaves the White House are

presumptively personal and not subject to review by partisan Biden appointees at

DOJ or U.S. Archives. Under the Constitution, federal law, and precedent, none

of the documents are currently "classified" or "national defense information" that

restricts President Trump's handing of them. They are ALL his personal records

and, frankly, should be returned to him. Again, the PRA protects President

Trump.

 It is in fact abundantly clear that the case going forward by the Biden DOJ is a

politically motivated case of “Prosecutorial Misconduct,” since there is no crime

on the part of President Trump. If there was, then every prior POTUS would be

guilty of the same. If justice prevails, this indictment won't survive scrutiny by

honest, constitutionalist judges and should be thrown out. 

Looking more closely at the indictment, as it pertains to the claimed charges against the

“Espionage Act,” and for those who aren’t familiar with this area of the law, here is what

the act states. 


Espionage Act of 1917 - 18 U.S.C. § 793:

- The Act was a law adopted on June 5, 1917, just after the U.S.'s entry into World War

One. It remains law today, although it has been amended numerous times.

Originally codified under Title 50, but changed to Title 18, criminalized espionage,

interfering with military operations and foreign policy, obstructing the newly instituted

draft, and encouraging insubordination and disloyalty. It served to suppress opposition

to the United States entry into World War I by making criticism of U.S. policy a

“treasonable” offense. 

- In combination with the Sedition Act of 1918, which amended it, the Act was used as

the basis for launching an unprecedented campaign against political radicals, suspected

dissidents, left-wing organizations, and aliens.

- The Espionage Act of 1917 criminalized any attempt to interfere with the operations of

the U.S. military, cause disloyalty in the US military, promote the success of U.S.

enemies by conveying information.

- Follow on amendments addressed Constitutional conflicts between the Espionage Act

and the First Amendment.

My criticisms of the Espionage Act stem from it conflicting with a number of

Constitutional issues. That being the vague and broad language of the Act, as well as the

fact that - contrary to popular misconceptions - the Act doesn’t really have anything to

do with “classified” information. Note, this highlights a common misunderstanding

pertaining to the Espionage Act. So again, it does not apply to this indictment against

President Trump.

Furthermore, it is critical to address that the current U.S. “classification system” was not

put in place until 1951 (under Executive Order 13526, and the latest in a long series of

executive orders on the topic of national security beginning in 1951).  It should be noted

that the entire U.S. national security classification system is a post-WW2 innovation

that came about from lessons learned and the ushering in of the “Cold War” starting

with the National Security Act of 1947, just to make that clear.

The historical origins of the Espionage Act and its underlying intent historically is based

on impediments to U.S. involvement in World War I -- which was in the midst of a full-

fledged conflagration at the time. That “intent,” as most legal experts agree, was not so

much dealing with national security, as it was with “suppressing dissent” in the United

States against the war effort.

The Espionage Act is one of the ‘most dangerous and unconstitutional statutes’ ever

signed by Woodrow Wilson in 1917. Its intent was to imprison dissidents who were

opposed to the U.S. war effort. 

Several Constitutionalists have pointed out is its comparison to the very nature of the

First Amendment. 


“Every civil libertarian, every liberal, every progressive, every Democrat had been

against the Espionage Act and it’s use for the last 100-years.  Now, suddenly, they are all

calling for it to be ‘applied broadly’ to President Trump’s conduct that has nothing to do

with espionage. There is no allegation that President Trump ever endangered U.S.

national security by providing classified material to enemies, or sold classified

information to adversaries in conflict with the U.S. politically, diplomatically or

militarily. 

So, the word "Espionage" is totally misleading and trying to apply the Espionage Act

against President Trump is misplaced legally for starters. 

The closest reference that the DOJ has in attempting to catch President Trump on is an

alleged audio, the so-called “Bedminister tape” - where he was explaining and

referencing the classification of a document. 

In the indictment, however, the audio was manipulated by the DOJ, but provides for a

perfectly plausible explanation. In that incident, President Trump is claimed to have

held up a piece of paper to demonstrate and emphasize a point, stating; “like this,” but

indications are it was not an actual classified document.  

Nevertheless, DOJ Special Counsel Jack Smith “edited out” Trump’s words “like

this.”  As of now, there is no proof that President Trump has the reference document

and it is actually unclear whether the document in question even exists. So, from that

standpoint, the Espionage Act is not relevant in any way, shape, or form.

From a legal standpoint, the Espionage Act is a "possession" statute, and even the

indictment count references provisions of the Act that notes "willfully possessing”

classified material for illicit and illegal intent and purposes.  

That does not apply to this case. 

President Trump’s possession of national security material whether classified or

unclassified is authorized to former presidents. Under the law and national security

directives and the PRA, a president has the right to possess and maintain any

documents that had anything to do with his administration.  

When pundits refer portentously to the Espionage Act in connection with Trump’s

indictment, more likely than not their intention is to smear the former president by

comparing and conflating him with the likes of Aldrich Ames and Robert Hanssen, who

were spies and imprisoned for selling out  America. Certainly, that is what is at play

here.  

Their message is clear - Make President Trump look like a traitor to the nation - claim

he sold out the US. 


Special Counsel Jack Smith’s foundational argument for his indictment against Trump

is this:

The DOJ is not arguing a “classified documents case.”  The entire legal framework is

centered around documents DOJ defines as vital to the US national defense, predicated

on this portion of the Espionage Act, 18 U.S. Code § 793(e) violation:

“18 U.S. Code § 793 (e) Whoever having unauthorized possession of, access to, or

control over any document, writing, code book, signal book, sketch, photograph,

photographic negative, blueprint, plan, map, model, instrument, appliance, or note

relating to the national defense, or information relating to the national defense which

information the possessor has reason to believe could be used to the injury of the

United States or to the advantage of any foreign nation, willfully communicates,

delivers, transmits or causes to be communicated, delivered, or transmitted, or

attempts to communicate, deliver, transmit or cause to be communicated, delivered, or

transmitted the same to any person not entitled to receive it, or willfully retains the

same and fails to deliver it to the officer or employee of the United States entitled to

receive it.” 

Certainly, that is not the case whatsoever – President Trump did not commit any such

act that would “injure of the United States or give the advantage to another foreign

nation.”

Nevertheless, despite the verbose language in the indictment, a key element of Lawfare,

to that end, weakens this criminal case. 

Certainly, the prosecutors knew that before they filed it.  

President Trump’s situation is NOT what the Espionage Act purports to be about to

bring a criminal case. 

The use of the Espionage Act has been prone to abuse, and it has always had its critics

because of the very broad and vague language, such as “relating to.”  It would be

critically important for President Trump’s legal team to attack from this angle in pre-

trial motions.

In conclusion on the Espionage Act, the PRA essentially covers virtually all counts in

this DOJ indictment, yet it is not mentioned at all. The PRA, not the Espionage Act,

controls a former president's handling of his own presidential records. Period.

Secondly, the reference and inclusion of the Espionage Act was clearly directed toward

the ‘politicalization of the indictment against President Trump.’  The indictment’s

language confirms the DOJ’s indictment of Trump is in and of itself “political.” Hence,

since the charges are politically based and driven -- there is no crime.

In the end, whether you love or hate President Trump, this indictment brought forth by

the Biden DOJ is a fraught moment for America. For the first time in U.S. history, the


prosecutorial power of the federal government has been used against a former President

who is also running against the sitting President. 

That alone makes this situation far graver than the previous indictment by New York

prosecutor Alvin Bragg. This will roil the 2024 election and U.S. politics for years to

come. It is a destructive indictment.  Let’s hope prosecutors understand the forces they

are about to unleash.

Americans will inevitably see Trump’s indictment as the “Garland-Biden political

indictment” by the most corrupt anti-American administration in its 250-year history.

It is clearly a recklessly bad faith and horrifically politically driven indictment to “GET

TRUMP.”  

But you knew that already.

________________________________________________________________

Jim Waurishuk, Colonel, USAF (Ret.)


Retired USAF Colonel, serving 30-years as a Tactical Air Control Party (TAC-P), Special

Reconnaissance, and Special Mission Strategic Intelligence Officer to multiple Tier 1 units as part of the

Joint Special Operations Command (JSOC) and USSOCOM. Served as Chief, Psychological Operations

- Strategic Influence JCS/National Command Authority. Served as Deputy Director for Intelligence U.S.

Central Command, and on the White House National Security Council (NSC) staff. Former Chairman,

Hillsborough County Republican Party and the Republican Party of Florida Executive Board. Chairman,


Program on Fifth Generation Warfare.

10 views0 comments

Comments


bottom of page