Over the course of the last several weeks we’ve been inundated with stories, posts, and discussions about the latest Trump indictment by the Biden Justice Department and Attorney General Merrick Garland and his prosecutors. Two areas that they are probing and an 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 Presidential Records Act (PRA), as well as the Espionage Act.
My intent of this piece is to focus on the “Espionage Act,” but will throughout the article briefly touch on what Attorney’s Tom Fitton and Mike Davis presented in their reviews of the Biden DoJ Indictment.
Let me start with Fitton, who is a well-known Constitutional Attorney who has 30-years of experience litigating federal and presidential records cases for Judicial Watch and is an expert on the PRA. He stated the following this week;
"I carefully reviewed the indictment of Trump by his political opponents at the Biden Justice Department. He stated that the document dishonestly ignores the U.S. Constitution, the PRA, legal precedent, and the DOJ's and the U.S. Archives' previous position that 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 Regimes 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. If justice prevails, this indictment won't survive scrutiny by honest, Constitutionalist judges and will be thrown out."
In analyzing Fitton’s review, 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 President of the United States would be guilty of the same.
As it pertains to the claimed charges against the Espionage Act, renowned Attorney and Law Professor Alan Dershowitz addressed and weighed in on Espionage Act and I believe his discussion may be informative for readers who aren’t familiar with this area of the law. Alan Dershowitz, the nation acclaimed criminal law professor, weighed in on the Trump indictment by the DoJ. He covered a lot of ground in an interview with Breitbart, which I used as a basis of the analysis on this aspect of the indictment.
Professor Dershowitz noted in a piece titled, “Dems Who Opposed ‘Dangerous’ and ‘Unconstitutional’ Espionage Act Now ‘Rooting for it to Be Applied Broadly” provided a glimpse into the questionable use of the Espionage Act by the Biden Regime DoJ. His broad, initial analysis can be summarized in two critical points:
First, he noted that the Presidential Records Act probably covers virtually all counts in the indictment.
Secondly, the reference and inclusion of the Espionage Act of 1917 was clearly directed toward the ‘politicalization of the indictment against President Trump.’
Further, the reference to President Trump’s Bedminster tape -- where he was explaining and referencing the classification of a document, was manipulated [by the Biden DoJ] and provides a perfectly plausible explanation. In that incident, President Trump held up a piece of paper to demonstrate and make an emphasis stating, “like this,” not an actual classified document. But DoJ Special Counsel Jack Smith edited out Trump’s words “like this.” So, from that standpoint, the Espionage Act is not relevant in any way, shape, or form.
At this point, lets briefly look at the language of the Espionage Act of 1917 -
18 U.S.C. § 792 et seq.
- 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.
Dershowitz addressed and referred to criticisms of the Espionage Act stemming from Constitutional issues. He noted that 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 the indictment against President Trump.
Furthermore, it is critical and necessary to address this because it is extremely important to understand that the current U.S. “classification system” was not put in place until 1951, under Executive Order 13526, the latest in a long series of executive orders on the topic of national security beginning in 1951. In fact, the entire 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.
Professor Dershowitz, who in addition to his expertise in criminal law also approached many legal issues from an old-time liberal “civil liberties” angle, weighing in on the Espionage Act in the concluding portion of his Breitbart interview. It’s important to understand that Dershowitz wasn’t denigrating national security concerns as such, which of course have nothing to do with any aspect of the DoJ’s indictment against Trump. Rather, he went back to the historical origins of the Espionage Act and the intent behind it, which from a historical perspective is based on impediments to U.S. involvement and commitment to World War I -- which was in the midst of a full-fledged conflagration at the time. That “intent,” as most scholars agree, was not so much dealing with national security, as it was with suppressing dissent in the United States against the war effort.
The specific point to understand about the Espionage Act is that it is one of the ‘most dangerous and unconstitutional statutes’ ever passed. It was passed by Woodrow Wilson in 1917 in order to imprison dissidents who were opposed to the war. As Dershowitz points out, “Every civil libertarian, every liberal, every progressive, every Democrat I know was against this statute for the last 100-years. Now, they’re all rooting for it to be ‘applied broadly’ to conduct that has nothing to do with espionage. There is no allegation that President Trump ever endangered national security, provided classified material to enemies, or sold classified information to our adversaries who we are at war with. So, the word "Espionage" is totally misleading and trying to apply the Espionage Act against President Trump is total and utter bullshit.
This is a "possession" statute, and even the count [in the indictment] involving showing [the referenced unknown and undetermined document] to other people was essentially brought under provisions of the Act that talks about "willfully possessing” classified material" for illicit and illegal intent and purposes. Which of course, did do. President Trump possession of national security material whether classified or unclassified is authorized to former Presidents. Under the law and national security directives and the PRA, he has the right to possess and maintain any documents that had anything to do with his administration. No different than any POTUS before him.
I think it’s safe to say that when you hear talking heads referring portentously to the Espionage Act in connection with this indictment, more likely than not they are trying to smear President Trump by comparing and conflating him with people like Aldrich Ames and Robert Hanssen - as mentioned in the Breitbart interview. These concerns, as Dershowitz pointed out, are not new. However, those on the political-left are rediscovering the profoundly anti-free speech roots of their radical Progressivism these days, and this political situation is just one more example of that.
Of course, the angle that DoJ Special Counsel Jack Smith is arguing over and that he claims is the foundational argument of his indictment against Trump is this.
The DOJ is not arguing a classified documents case. The entire legal framework is centered around documents they define as vital to the defense security of the United States. Everything is predicated on this 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.”
Nevertheless, despite the verbose language in the indictment, a key element of Lawfare, the case is weak. And the Biden DoJ prosecutors know it. Professor Dershowitz is absolutely correct that the Trump situation is NOT what the Espionage Act purports to be about. Again, as I’ve attempted to point out, the use of the Espionage Act has regularly 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.
Let me bring forth one other concern and perhaps a more fundamental problem involved with the Indictment. As Attorney Mike Davis, the former law clerk to Justice Neil Gorsuch and the head of the Article 3 Project, explains, “it’s the Presidential Records Act (PRA) that applies here. To Davis’ point … you can’t charge a crime under the PRA when (the act alleged) isn’t a crime under the PRA.
So, again, the DoJ indictment itself confirms Garland's indictment of Trump is in and of itself “political”:
1. The PRA, not the Espionage Act, controls a former president's handling of his own presidential records. Period.
2. Generally, legally impossible to obstruct investigation into non-crime, per the binding 2019 DoJ Office of Legal Counsel memo (which delt with the fake allegation, “non-crime” that the Trump campaign conspired with Russia to interfere with the 2016 election).
Davis also said he doesn’t think it will ultimately survive review and pointed to the timing -- just as the ‘Biden bribery information which dropped last Thursday on Biden’s $10 million deal with Ukraine’s Burisma scheme.
In the end, whether you love or hate Donald Trump, this indictment by Biden’s 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. This is far graver than the previous indictment by a rogue New York prosecutor Alvin Bragg, and it 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.
Rogue and radical-left DoJ special counsel Jack Smith who could give a flying “f” about the destructive nature to the U.S. judicial system that is underway, announced the indictment in a brief statement last Friday. But no one should be fooled – regardless, as it is Attorney General Merrick Garland’s ultimate responsibility. Garland appointed Mr. Smith to provide political cover to protect Biden. However, Mr. Garland, who reports to Biden, has the authority to overrule a special counsel’s recommendation. Americans will inevitably see this as the “Garland-Biden political indictment,” and they are right to look at it as a disgusting political ploy of desperation by the most corrupt anti-American administration in the 250-year history of this nation.
The indictment levels 37 charges against President Trump relate to nothing, just as all other investigations, impeachments and indictments! They are howver grounded in complete and total lies regarding the handling of classified documents at his Mar-a-Lago home, since President Trump left the White House. As discussed, thirty-one of the counts are for violating the 106-year-old and seldom, if ever-enforced Espionage Act for the “willful retention of national defense information” which is bogus.
But it’s striking, and legally notable, that the indictment never mentions the PRA that allows a President access to any documents, classified and unclassified once he leaves office. Not to mention the President’s legal and Constitution authority to “declassify” any classified documents he wants. Which President Trump did and in fact, validated via official letter on January 19, 2021. Further, the PRA provides for and allows for good-faith negotiation with the National Archives. Which as we all know President Trump and his attorneys have been doing prior to and after he left office. All Presidents do this under the law and the directives that require such. Yet the indictment assumes that President Trump had no right to take any classified documents.
This doesn’t fit the spirit or letter of the PRA, which was written by Congress to recognize that such documents had previously been the property of former Presidents. If the Espionage Act means Presidents can’t retain any classified documents, then the PRA is all but meaningless. If that is case, the same indictment needs to brought against Obama, Bush 43, Clinton, Bush 41, Jimmy Carter, and posthumously against all former presidents [who have passed] going back to 1917. And Joe Biden, the current “installed President” -- because he actually has illegally taken classified documents and presumably provided critical information, [in exchange for …] as specified in the Espionage Act to America’s adversaries and is currently helping them destroy America.
Clearly a totally bad faith, reckless, 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.