Reporting from the Washington Post and New York Times indicates that former president Donald Trump has been indicted on seven felony counts. The indictment obtained by special counsel Jack Smith from a federal grand jury in Miami is still under seal, so the reports are based on leaks from people said to be knowledgeable.
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The most notable thing I’ve seen is that, in charging Trump with an Espionage Act offense, prosecutors are relying on a provision that criminalizes willful violations of the rules that government officials are required to follow in handling national-defense intelligence. This seems like an obvious effort to distinguish Trump’s alleged crime from President Biden’s mishandling of classified documents, which the White House and the media-Democratic complex have described as inadvertent — the result mainly of sloppy staff work, not willfulness.
No one who has been following our analyses at NR will be surprised to hear that Trump is reportedly charged with a conspiracy to obstruct justice. What intrigues me about that allegation is that it takes two to tango — i.e., one can’t conspire alone. To have conspired to obstruct justice, prosecutors would have to prove that Trump had at least one co-conspirator who knowingly agreed to obstruct the government’s investigation. At this point, it is not clear with whom Smith alleges Trump conspired. When the indictment is made public, perhaps it will shed light on that question.
Trump is also said to be charged with making false statements. As I’ve previously related, one theory the special counsel appears to be pressing is that Trump is responsible for a false sworn statement his lawyers conveyed to the FBI — for transmission to the grand jury — on June 3, 2022.
At that time, the lawyers represented that a thorough search of Mar-a-Lago had been conducted and that the 38 documents bearing classification marking that they were surrendering that day were the only ones in Trump’s possession. After that point, the government continued to investigate and developed evidence that Trump was still hoarding documents marked classified. As a result, prosecutors sought and obtained a search warrant for Mar-a-Lago on August 5, 2022. Three days later, the FBI searched the premises and seized over a hundred documents with classification markings, many of them found in Trump’s private office.
Under the federal aiding-and-abetting statute, a principal is responsible for criminal acts of his agents, including false statements, if he has caused, counseled, or commanded their commission.
Most interesting, though, are reports that Trump is charged with willfully retaining national-defense information. We can’t be sure until we’ve seen the indictment, but this appears to refer to subsection (d) of the Espionage Act (Section 793 of the federal criminal code, Title 18). In pertinent part, that section states:
Whoever, lawfully having possession of, access to, control over, or being entrusted with any document … 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 retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it [is guilty of a crime punishable by up to ten years’ imprisonment].
Subsection (d) sets forth a more serious offense than the provision that usually applies to government officials who mishandle classified information and other national-defense intelligence. That provision, subsection (f), makes it a crime for officials trusted with national-defense intelligence to exhibit gross negligence in mishandling it (e.g., by removing it from safekeeping, by retaining it in an unauthorized place, by exposing it to an unauthorized person, or by allowing it to be lost, stolen, or destroyed).
Subsection (f) would obviously be applicable to the misconduct of President Biden, who was entrusted with classified information and, at a minimum, caused it to be removed from safekeeping and stored it in unauthorized locations.
Obviously, if Trump were charged with a violation of subsection (f), it would raise the question of why Biden has not also been charged with that offense. The strategy of the Biden administration and its special counsel, then, seems to be (1) to allege that Trump committed a willful offense that puts him in a different, more egregious category from Biden’s conduct; and (2) to pretend in connection with Biden — as the Obama-Biden Justice Department pretended in connection with Hillary Clinton’s email scandal — that it is not a felony for government officials to be grossly negligent in mishandling classified information (i.e., to pretend that willfulness, or some intent to harm the United States, is an essential element of the offense).
If Trump had given the documents back when they asked for them, he wouldn’t be charged either. Let’s stop making delusional excuses for Trump’s extreme stupidity. They always rightly preached to us when I had a clearance that mishandling classified documents put the Nation at risk and also the lives of those non-Americans who aid the US. What he did appears to be far worse than what Hillary did, and there was no good reason for him to do it. Trump’s problems in this case are totally self-inflicted due to his arrogance. I voted for Trump, I just never fell for the idea that he is our “national savior” and that we owe him total, unthinking loyalty. Pull your head out, finally, Repubs.
What a nasty way to express yourself Roger. In the first place being president gave him the right to declassify which he states he did. That’s it Done deal! What he is being charged for is a statement someone heard repeated by someone else… heresay. Which President Trump declares he did not say. He should not have been charged. He certainly did not have to return unclassified docs to NARA! He was open with the FBI and negotiating with NARA. They were not open with him. This is an absolute form of insurrection on Jack Smiths part. President Trump is innocent yet they want to put him in jail for the rest of his life. I submit sir my head is on my shoulders I am well aware of what is going on. It the most dangerous thing I have seen in my life time and could be happening to any one of us. Trump is merely standing in our stead and on the law. Get real!
In the rush to recover from the humiliation of the Nixon resignation, Republicans supported even bigger crimes committed by Trump, even very serious crimes against the Constitution. Some people just can’t win for losing. I am a registered Republican by the way.
I don’t care what political party you are registered with. If you haven’t figured out by now that it has been a “witch hunt” on Trump you are fool! The Russian collusion, the Steel dossier, the Mueller Report, the Quid Pro Quo over the Ukraine phone call, the “Impeachment Facade, the bias by the MSM (that would be the fake news), the lies from Comey, MaCabe, Brennan, the Durham Report, the weaponization of the FBI and Justice Department you are the one with your head stuck up your ass! Trump is not the most likeable person. But he did more for this country than the entire cadre of Socialist/Communist individuals called the Democratic Party (you know the “Woke Progressive Liberals). Ar least Trump knows what bathroom to use. If you are insulted by this response I am happy! I meant to insult you because that garbage you shoveled in your comments insulted me. I suggest you re-register your political preference as Democratic. By the way, a person is innocent until “proven guilty”. My premonition is Trump is going to declared innocent on all counts.
Hummm, the Obama Administration ignored flat lies by Hillary Clinton, ignored theft of government documents, ignored the changing of top security labels, used hammers to destroy illegal computer data that was prohibited from being outside the federal government.
Gee what could be the problem with the former President from having some far less sensitive documents?
Where are the charges against her and Obama?
Talk about stupid is as stupid does…..that comes under the heading of voting for Democrats who have gone so far Left they now openly hire Communists to work in their offices.
Geez,
This indictment is directed toward the wrong person. It should list Hillary Clinton for the millions of dollars that disappeared when she was Secretary of State, for ignoring her responsibility to stop the mess at Benghazi, for destroying government records illegally on her private server, to name a few of her crimes. It should list Obama for directing the IRS to hassle, fine and deny conservative non-profits, for ignoring and covering up the Clinton crimes. It should list the Biden family illegal enterprises with foreign countries, especially China. But this will never happen as long as Americans continue to blindly vote for what they think is the Democrat’s Party philosophy. The Marxist Communist party has taken over the Democrat party, infiltrated every aspect of American life, and gleefully rigging elections. Will Americans ever wake up to the reality of what is going on? The Marxists want Americans to buy electric cars, yet no plans for a grid to meet charging demands, they want America to go all electric, yet no plans to upgrade the grid to handle it all, they want to transgender school children, but no plans to teach them self-supporting skills. Anybody awake yet?