On June 8, 2023, Donald Trump was indicted for his actions regarding his handling of classified documents. However, there is a big problem with this indictment that no one seems to be noticing. And being the type of person I am, I intend to share this info with you.

By now, you probably have seen the indictment. If you haven’t seen it, you can read it here:

I am a lawyer and this post explains why Donald Trump is almost certainly not guilty of the 31 counts of “Willful Retention of National Defense Information” for which he has been indicted, because the law simply does not allow him to be guilty.

The additional counts of Conspiracy to obstruct Justice, Withholding a Document or Record, Corruptly Concealing a Document or Record, Concealing a Document in a Federal Investigation, Scheme to Conceal, and False Statements and Representations will not be discussed, even though they will likely be similarly hampered by the failure of the 31 counts of “Willful Retention of National Defense Information.”

No, I am not a federal prosecutor and no I have never been a federal prosecutor. I haven’t even been a criminal defense attorney, but you don’t need to be an expert in law to see the problem with this prosecution. All you have to do is take the time to read some things, which I have done.

However, before we get to explaining what is in the indictment, we need to explain some background and explore something important that is NOT in the indictment.

The Missing Charge in the Trump Indictment and the Reason for Its Absence

Before the indictment was announced on June 8, 2023, I need to explain something that quite literally everyone seems to be ignoring. I have not seen anyone – whether pro- or anti-Trump address this issue. The issue is Trump’s possession of “classified” documents.

Ever since August 8, 2022, when the Justice Department through a search warrant raided Trump’s house, there has been wall-to-wall coverage regarding the fact that Donald Trump had CLASSIFIED DOCUMENTS at his Mar a Lago home. We learned in that coverage that Trump apparently intentionally took these classified documents when he was leaving the White House on January 20, 2020.

Critics of Trump on television have chastised Trump for taking these classified documents, calling it a serious violation of law. Defenders of Trump on television have excused Trump’s actions by saying he is the president with inherent power to declassify documents. The critics (and many people in the intelligence community) will come back and say that there is a “process” to do that which the president didn’t follow. The defenders respond by saying that the president’s actions can declassify documents, even if his words don’t formally do so.

In the midst of all that discussion, we had a suspiciously timed pattern of random “discoveries” that other officials like Mike Pence and Joe Biden were wrongfully in possession of classified documents from their time as Vice President (for Pence) or Vice President and Senator (for Biden). It even appears that Hunter Biden appears to have sent information from a classified document which was related to his stent on the Board of Directors for the Ukrainian energy company, Burisma.

With all of that history, it seems like a double standard that Trump would face indictment for his possession of classified documents, but these other political figures do not face any consequences for their possession of classified documents. But the truth is actually more complicated.

You see, we need to remember something: There is NO SUCH THING as a crime of merely “possessing” classified documents. If mere “possession” of classified documents was a crime, then New York Times reporters who receive classified documents from confidential sources would be prosecuted. But they are not. If mere “possession” of classified documents were a crime then all journalists who wrote on the Pentagon Papers would be prosecuted. But they are not. If mere “possession” of classified documents were a crime, then clicking on this link to Wikileaks.org and looking at the hundreds of classified documents on your phone or computer would make YOU guilty of a crime. But that is not going to happen, because there is no such thing as a “crime” of possession classified documents.

The thing that is a crime is that when certain people receive classified documents, it is illegal for them AND ONLY THEM to put those documents into the public realm. Once their in the public realm, people can see them and do whatever with them because of the First Amendment and lots of other reasons.

And here is what EVERYONE is missing in this discussion:

IT IS NOT ILLEGAL FOR DONALD TRUMP, MIKE PENCE, OR JOE BIDEN TO HAVE THIS CLASSIFIED INFORMATION IN THEIR PRIVATE HOMES, PRESIDENTIAL LIBRARIES, OR PERSONAL GARAGES.

Yes, you read that right, and I’m not just making this up. The source of this is the text of 18 USC § 1924, which criminalizes the removal and possession of classified information:

(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both.

(b) For purposes of this section, the provision of documents and materials to the Congress shall not constitute an offense under subsection (a).

18 USC § 1924(a-b) https://www.law.cornell.edu/uscode/text/18/1924

What the astute reader will notice is that it is only a crime for an “officer, employee, contractor, or consultant” of the United States to remove classified information from its proper place. Section (b) is not an “exception” for congressmen and senators. Instead, it is an exception to allow “offers, employees, contractors, and consultants” to GIVE information to Congress. The ability of Congress to receive these documents is simply assumed. The same goes for the president, because there’s not “exception” for the President to receive classified information. It’s just assumed he gets it. The reason is simple:

PRESIDENTS, VICE PRESIDENTS, SENATORS, AND CONGRESSMEN ARE NOT OFFICERS, EMPLOYEES, CONTRACTORS, OR CONSULTANTS OF THE UNITED STATES

And so this is what everyone is ignoring when it comes to finding these “classified” documents in the possession of Donald Trump (and Mike Pence and Joe Biden, too):

IT IS TOTALLY LEGAL FOR DONALD TRUMP TO REMOVE AND RETAIN THOSE CLASSIFIED DOCUMENTS AT MAR-A-LAGO. IT QUITE LITERALLY IS NOT A CRIME.

And that is an extremely significant fact. Despite all of that hubbub that you’ve been hearing on cable news about this illegal “possession” of classified information outside of a SCIF (Sensitive Compartmented Information Facility), none of that was illegal. The government may not like it, just like it doesn’t like Wikileaks. But the government is forced to deal with it, because the law does not criminalize it.

Before we move on to the next section, I will note that cabinet secretaries are “officers” of the United States, as Article II, Section 2 makes clear. As such, Hillary Clinton’s wrongful removal of that server to her basement does not fall into this similar exemption. But, the analysis of that incident is beyond the scope of this post.

The Proof That It Is Legal For Donald Trump To Possess Classified Information

Now, you may think that I am crazy when I say that it is legal for Donald Trump to remove and retain classified documents at Mar-a-Lago. Truth be told, I thought I was crazy, too. But then I saw something that proved I was not crazy unlikely source: The Department of Justice led by Merrick Garland.

All you have to do is see the Search Warrant for the August 8, 2022 raid. You can read it in full here:

On the fourth page, you can read that the Department of Justice was looking to seize those documents due to the potential violation of certain laws. The laws that were potentially violated were: 18 U.S.C. §§ 793, 2071, or 1519.

THE LAW THAT WAS NEVER ALLEGED BY THE FBI TO BE VIOLATED WAS 18 U.S.C. § 1924, WHICH IS WHAT CRIMINALIZES THE REMOVAL AND POSSESSION OF CLASSIFIED INFORMATION

That’s when I knew that this thing was not as it appeared.

It was confirmed in the indictment. When it came to charging Trump, despite alleging that Donald Trump “removed” these classified documents and had the “intent” to retain these documents (which is all that is required for prosecution under 18 U.S.C. § 1924), Trump was not indicted for these actions. As you can see right there on the first page of that document, there are several code sections that are at play:

• 18 U.S.C. § 793(e)
• 18 U.S.C. § 1512(b)(2)(A)
• 18 U.S.C. § 1512(c)(1)
• 18 U.S.C. § 1519
• 18 U.S.C. § 1001(a)(1)
• 18 U.S.C. § 1001(a)(2)
• 18 U.S.C. § 2

None of these are based on the “removal and possession” of classified documents. And there’s only one possible reason for this:

The only reason the DOJ would not prosecute Trump for removal and possession of classified documents OR EVEN SEEK A SEARCH WARRANT pursuant to this law is that Trump, as an elected official, belongs to a class of people who are inherently legally entitled to possess and retain classified information.

That is a GIGANTIC HOLE in the prosecution of Trump related to 18 U.S.C. § 793, which I will explain in the following section.

The Accusation Against Trump in the Indictment Regarding National Defense Information

So, yes. Donald Trump is not being prosecuted under 18 U.S.C. § 1924. Instead, he is being accused of wrongly handling “national defense information.” We can see the accusation in the first eight paragraphs of the indictment:

1. Defendant DONALD J. TRUMP was the forty-fifth President of the United States of America. He held office from January 20, 2017, until January 20, 2021. As president, TRUMP had lawful access to the most sensitive classified documents and national defense information gathered and owned by the United States government, including information from the agencies that comprise the United States Intelligence Community and the United States Department of Defense.

. . .

4. At 12:00 p.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.

. . .

8. As a result of TRUMP’s retention of classified documents after his presidency and refusal to return them, hundreds of classified documents were not recovered by the United States government until 2022, as follows:

a. On January 17, nearly one year after TRUMP left office, and after months of demands by the National Archives and Records Administration for TRUMP to provide all missing presidential records, TRUMP provided only 15 boxes, which contained 197 documents with classification markings. 

b. On June 3, in response to a grand jury subpoena demanding the production of all documents with classification markings, TRUMP’s attorney provided to the FBI 38 more documents with classification markings.

c. On August 8, pursuant to a court-authorized search warrant, the FBIrecovered from TRUMP ’s office and a storage room at The Mar-a-LagoClub 102 more documents with classification markings.

Based on these facts, Trump is accused of violating is 18 U.S.C § 793(e), which both explains what is involved in that crime in the following language:

(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;

. . .

Shall be fined under this title or imprisoned not more than ten years, or both.

18 U.S.C. §793(e) https://www.law.cornell.edu/uscode/text/18/793

That is the law Trump is accused of violating 31 times. But as we already described, the question is about “unauthorized possession” of national defense information. That’s the same group of “classified” documents we were talking about before. And so Trump DID have legal access to the national defense information.

That’s a big problem for the prosecution.

But amazingly, there should have been a simple way to avoid this big problem. There is a nearly identical crime that is described IMMEDIATELY BEFORE THIS SUBSECTION, which actually applies to those who have “lawful possession” of national defense information here is what it says:

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with 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 on demand to the officer or employee of the United States entitled to receive it;

. . .

Shall be fined under this title or imprisoned not more than ten years, or both.

18 U.S.C. §793(d) https://www.law.cornell.edu/uscode/text/18/793

So here’s the big question: Why didn’t the Department of Justice indict Trump for a violation of 18 U.S.C. § 793(d) instead of 18 U.S.C. § 793(e)? These two provisions look exactly the same, but strangely the one they chose criminalizes those who have “unauthorized access” of national defense information (even though Trump had authorized access to the information), while the one they didn’t choose criminalizes those who have “lawful access” to national defense information (even though Trump had that lawful access).

What’s up with that? The answer shows just how cynical this prosecution is:

THE “LAWFUL ACCESS” VERSION OF THE CRIME REQUIRES THAT THE CRIMINAL “FAIL TO DELIVER IT ON DEMAND” WHILE THE “UNLAWFULL ACCESS” VERSION DOES NOT REQUIRE THAT A DEMAND BE MADE.

As you can see in paragraph 8 of the complaint, when the National Archives asked Trump to return documents, he did return the documents. There was an ongoing conversation about whether the National Archives was entitled to the documents at all.

The DOJ must have chosen the “unauthorized access” hurdle because they knew they couldn’t overcome the “fail to deliver it on demand” hurdle.

When you think about it, that’s dirty. Why not just officially make the demand?

As such, the DOJ is using an extremely novel legal theory to prosecute Trump.

The Legal Theory To Prosecute President Trump

So, how does the DOJ violate 18 U.S.C. § 793(e), which requires “unauthorized access” when the President is someone that the DOJ tacitly admits (by their lack of prosecution of 18 U.S.C. § 1924) had lawful access to classified information?

The answer is that you go to the Presidential Records Act, 44 U.S.C. § 2201, et seq. This is a law that gives ownership of “Presidential Records” to the government. As such, all “Presidential Records” are owned by the government and not by the individual president.

Now, you might not have seen the “Presidential Records Act” in the incident, but it barely pokes out in paragraph 8 of the Complaint:

8. As a result of TRUMP’s retention of classified documents after his presidency and refusal to return them, hundreds of classified documents were not recovered by the United States government until 2022, as follows:

a. On January 17, nearly one year after TRUMP left office, and after months of demands by the National Archives and Records Administration for TRUMP to provide all missing presidential records, TRUMP provided only 15 boxes, which contained 197 documents with classification markings.

b. On June 3, in response to a grand jury subpoena demanding the production of all documents with classification markings, TRUMP’s attorney provided to the FBI 38 more documents with classification markings.

c. On August 8, pursuant to a court-authorized search warrant, the FBI recovered from TRUMP’s office and a storage room at the Mar-a-Lago Club 102 more documents with classification markings.

That’s right. The reason Trump had “unauthorized possession” of these documents is that the “National Archives and Records Administration” were entitled to receive those documents. And when you read the definition of “Presidential Records,” it seems that NARA may have a point:

The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter.

44 U.S.C. 2202 – https://www.law.cornell.edu/uscode/text/44/2202

However, the problem with this view is that it is not the National Archives who makes the determination of what a “Presidential Record” is. It is also not the FBI. It is also not the DOJ. Guess who it is?

The President of the administration decides which records of his are “Presidential Records.” In other words, Donald J. Trump decides.

And it’s not just me saying that. Instead, that’s a federal court saying that. The rule came from Jud. Watch, Inc. v. Nat’l Archives & Recs. Admin., 845 F. Supp. 2d 288 (D.D.C. 2012), which says this in the relevant part:

As another court in this district has observed, “[t]he PRA incorporates an assumption made by Congress (in 1978) that subsequent Presidents and Vice Presidents would comply with the Act in good faith, and therefore Congress limited the scope of judicial review and provided little oversight authority for the President and Vice President’s document preservation decisions.”

Judicial Watch, Inc. v. Nat’l Archives & Records Admin., 845 F. Supp. 2d 288, 291 (D.D.C. 2012)

That’s right. The law assumes that the President does a good job, and there is “little oversight” given to other branches of government. And this is the reason why Trump is claiming he doesn’t have to give those documents back.

And I’m not alone in believing this. For example, the lawyer who lost the case of Jud. Watch, Inc. v. Nat’l Archives & Recs. Admin., 845 F. Supp. 2d 288 (D.D.C. 2012) wrote an Op-Ed in the Wall Street Journal explaining why the legal theory of the government fails here. You can get a link to that Op-Ed here, but there is a pay-wall.

So, let’s review:

• The unauthorized possession of the documents is a requirement to convict Trump.
• Unfortunately for the DOJ, Trump had LAWFUL ACCESS to all classified information because he was president, so that doesn’t matter.
• However, Trump did NOT have lawful possession of any “Presidential Records.”
• Unfortunately for the DOJ, the law says that the person who decides what is and isn’t a Presidential Record” is Donald J. Trump.

That is the a big problem for the prosecution of Donald Trump.

How Things Get Really Dirty In This Prosecution

When I started thinking about writing this post, I thought I was going to write about how unelected bureaucrats are asserting their power over the elected representatives they are supposed to serve. I thought this post was going to end at the recognition that 18 U.S.C. § 1924 does not criminalize Trump’s possession of classified documents, etc. etc.

But as I started looking into the facts, things got darker. It became clear that even the DOJ and FBI knew that Trump’s handling of classified documents was not criminal, but they were proceeding anyway. That’s dirty.

But then things got dark. We should note that the prosecutor placed in charge of this matter has a history of illegitimate political prosecutions. Merrick Garland appointed Jack Smith as the prosecutor to oversee this matter in November of 2022.

This is the same Jack Smith who prosecuted and completely ruined the political fortunes of Robert McDonnell, former governor of Virginia, by prosecuting him for bribery. Unfortunately for Smith, this conviction was overturned by the Supreme Court in a unanimous decision in 2016. Unfortunately for McDonnell, this was too late for McDonnell’s name to be restored.

On such a high-profile case of such importance, why did Merrick Garland pick this prosecutor with such a sketchy past? Geez. That’s a good question. A really darn good question. Could it be because regardless of the legal validity of Jack Smith’s prosecutions, he has successfully destroyed those political opponent’s presidential futures?

Remember that before Governor McDonnell was wrongly indicted and wrongly convicted by Jack Smith THE SAME LAWYER WHO IS PROSECUTING TRUMP, he was a leading contender for the presidential nomination for the GOP. As this MSNBC story from 2014 explains, everyone from Mitt Romney to Mike Huckabee to Donald Trump had positive things to say about McDonnell. As such, he was a universally acknowledged leader in the Republican Party.

That is… …he was a universally acknowledged leader until he was indicted. AND THAT’S THE POINT.

But then things got REALLY DARK. And when I say dark, I mean really dark. One of the first things I saw that shocked me in the Trump indictment was that there were conversations BETWEEN TRUMP AND HIS ATTORNEYS that were IN THE INDICTMENT. Look at paragraph 54:

54. On May 23, 2022, TRUMP met with Trump Attorney 1 and Trump Attorney 2 at The Mar-a-Lago Club to discuss the response to the May 11 Subpoena. Trump Attorney 1 and Trump Attorney 2 told TRUMP that they needed to search for documents that would be responsive to the subpoena and provide a certification that there had been compliance with the subpoena. TRUMP, in sum and substance, made the following statements, among others, as memorialized by Trump Attorney 1:

a. I don’t want anybody looking, I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes. 

b. Well what if we, what happens if we just don’t respond at all or don’t play ball with them?

c. Wouldn’t it be better if we just told them we don’t have anything here?

d. Well look isn’t it better if there are no documents?

Trump Indictment paragraph 54

Notice that this is a conversation about how to respond to a subpoena. That’s quintessential legal conversation. Trump shares his opinion that he doesn’t want anybody looking in his boxes, then he asks questions. THAT IS THE CORE OF WHAT ATTORNEY-CLIENT PRIVILEGE IS. Even if a defendant asks an attorney “Do I need to tell the police where I buried the body?” that is STILL protected by attorney-client privilege.

And no, the attorney didn’t “Flip” on Trump. Instead, we found out in this interview that the attorney was forced to testify and hand over this information by the government.

So, not only do we have a bogus indictment and a political indictment, we also have an indictment that determines that questions to your lawyer are evidence of your guilt. That’s worse than dark. That’s dictatorial.

Conclusion

There are many people who do not like the fact that Donald Trump took classified documents and stored them in his Mar-a-Lago home. That’s fair. Some may think that Donald Trump exercised poor judgment or doesn’t have the character traits necessary for the office of the president. These are all perfectly fine opinions. But these are issues that are decided by elections.

This prosecution, however, is a serious affair. Regardless of your political beliefs or opinions of Donald Trump, we should all recognize how dictatorial and dangerous it is for a sitting administration to use a criminal prosecution based on a bogus charge to knock out a political opponent.

That is exactly what is happening in this matter.