ALL 31 ESPIONAGE ACT COUNTS MUST BE DISMISSED AS A MATTER OF LAW - REGARDLESS OF DECLASSIFICATION
The Trump Indictment Is DOA.
For a nation with so many bright attorneys, it seems very odd that only now after so much time and activity - DOJ subpoenas; a warrant; and the first ever indictment of a former POTUS - it will be conclusively established that former President Trump did not violate the Espionage Act, because he had lawful possession, control over and access to every document he is being charged with willfully retaining under 18 USC 793(e). He now stands exonerated, regardless of whether he declassified the documents before leaving office.
A garden variety statutory analysis of three laws directly related to NARA will end our national nightmare. This isn't a difficult decision for federal jurists. No facts need be disputed. In a Motion To Dismiss, the court must accept all facts as stated in the indictment as if they were true, then if - as a matter of law - the facts stated do not establish all necessary elements of the statute charged, the indictment must be dismissed. That will happen soon as to all 31 Counts under the Espionage Act. (Obstruction related charges will be thoroughly debunked as well in a follow up piece.)
Three NARA Related Statutes Exonerate President Trump:
1. Presidential Records Act (PRA)
2. Former Presidents Act (FPA)
3. Presidential Transition Act (PTA)
PRA ANALYSIS:
All Presidential Records of a former President - as per the PRA at §2202 - are in complete legal possession of, and owned by, the United States, which also has complete control over such records. As per §2203(f), an incumbent President “shall remain exclusively responsible for custody, control, and access to such Presidential records”, and he may transfer such records to NARA’s physical (but not legal) custody before his term ends so the Archivist ”may maintain and preserve” such records. As per §2203(g)(1), NARA "shall assume responsibility for the custody, control, and preservation of, and access to" all Presidential Records of a former president. But the statute also creates exceptions thereto, while some sections are subject to other provisions of law:
§2203(a) Through the implementation of records management controls and other necessary actions, the President shall take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of the President’s constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are preserved and maintained as Presidential records pursuant to the requirements of this section and other provisions of law.
§2203(b) Documentary materials produced or received by the President, the President’s staff, or units or individuals in the Executive Office of the President the function of which is to advise or assist the President, shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.
The PRA §2203 requires the President to document his official performance of duties, and to categorize and separate Presidential records from personal records. He must do this, and he must do it carefully so that his official actions in office are "adequately documented". This is a rational duty imposed by law.
Now please notice where I added bold print: §2203(a) informs that the required "records management control" (keep that term in mind) is subject to "other provisions of law". Other provisions of law relevant here are the FPA & PTA.
The bold print in §2203(b) is a leeway provision which acknowledges that the President will perform these duties as to each document when he receives them, or when they are created "to the extent practicable". This is the only time limitation imposed by the PRA for the categorization/separation of Presidential records - which is no limitation at all. The PRA here recognizes POTUS is a very busy man, and that he generates so many important documents that it isn't "practicable" to force upon him a deadline. Why? Because that would defeat the purposes of § 2203(a), which requires such performance be done accurately, not rushed or haphazardly.
Reading §2203 (a) & (b) together, we must look to those "other provisions of law" and other sections of the PRA to see how they grant authority to a former President to complete his required categorization/separation of Presidential records after his term has ended, should it not have been "practicable" for him to complete it during his term. Before returning to the PRA for the finale, we must now study two other statutes:
FPA ANALYSIS (3 U.S.C. § 102 note):
(a) Each former President shall be entitled for the remainder of his life to receive from the United States a monetary allowance at a rate per annum, payable monthly by the Secretary of the Treasury, which is equal to the annual rate of basic pay, as in effect from time to time, of the head of an executive department...
(b) The Administrator of General Services shall, without regard to the civil-service and classification laws, provide for each former President an office staff. Persons employed under this subsection shall be selected by the former President and shall be responsible only to him for the performance of their duties...Amounts provided for “Allowances and Office Staff for Former Presidents” may be used to pay fees of an independent contractor who is not a member of the staff of the office of a former President for the review of Presidential records of a former President in connection with the transfer of such records to the National Archives and Records Administration...
Both the PRA & FPA are hosted by NARA at their official archives.gov website, so everyone there is well aware of the FPA, which makes clear that the President remains part of the federal government apparatus. The FPA grants him office space, a staff and a three million dollar budget to do what? In section (b), it states that amounts provided for allowances and office staff may be used:
"...for the review of Presidential records of a former President in connection with the transfer of such records to the National Archives..."
The FPA - by its very text - contemplates that the "former President" may use his budget to review his Presidential records with staff and a hired consultant for transfer to NARA. In light of this "other provision of law", it becomes very obvious that a former President is granted - by this federal statute - possession of, access to and control over his Presidential records after he leaves office, and for so long as it takes him to complete the requirements of the PRA §2203(a) & (b).
It now seems absurd that NARA went berserk, considering they host the FPA at their website. But their evil tantrum gets even more bizarre in light of the PTA:
PTA ANALYSIS [Public Law 88–277, 78 Stat. 153 (3 U.S.C. 102 note)]
Section 3(a) of the PTA:
SERVICES AND FACILITIES AUTHORIZED TO BE PROVIDED TO APPARENT SUCCESSFUL CANDIDATES
SEC. 3. (a) The Administrator of General Services, referred to hereafter in this Act as ‘‘the Administrator,’’ is authorized to provide, upon request, to each apparent successful candidate for the office of President and Vice President...
Now skip to Section 5:
SERVICES AND FACILITIES AUTHORIZED TO BE PROVIDED TO FORMER PRESIDENTS AND FORMER VICE PRESIDENTS
SEC. 5. The Administrator is authorized to provide, upon request to each former President and each former Vice President, for a period not to exceed seven months from 30 days before the date of the expiration of his term of office as President or Vice President, for use in connection with winding up the affairs of his office, necessary, services and facilities of the same general character as authorized by this Act to be provided to apparent successful candidates..."
Section 5 provides to the former President "services and facilities of the same general character as authorized" for the "successful candidate". So now we go back to Section 3 to see what services and facilities are provided to both - the former President and the successful candidate:
3(a)(8)(A)(iii): Activities under this paragraph may include training or orientation in records management to comply with section 2203 of title 44, United States Code, including training on the separation of Presidential records and personal records to comply with subsection (b) of that section.
The PTA explicitly granted to former President Trump and his staff "training or orientation" - through July 21, 2021 - to complete the compliance required by section 2203 of the PRA regarding the "separation of Presidential records and personal records". Obviously, the PTA recognizes that the PRA does not require that the former President complete his work under the PRA before his term ends. NARA's petulant tantrum wasn't just absurd, it's suspicious in the extreme, especially in light of the following:
3(a)(8)(A)(v): Activities under this paragraph shall include the preparation of a detailed classified, compartmented summary by the relevant outgoing executive branch officials of specific operational threats to national security; major military or covert operations; and pending decisions on possible uses of military force. This summary shall be provided to the apparent successful candidate for the office of President as soon as possible after the date of the general elections held to determine the electors of President and Vice President...
The PTA requires that the former President and relevant staff provide "a detailed classified, compartmented summary" of national defense issues. They can't do that without relevant classified documents and the clearance necessary to discuss them. Since the authority of the PTA lasted through July 21, 2021, the FPA - by law - kicked in on July 22, creating an unbroken grant of statutory authority - which remains in effect now - for the former President to possess all Presidential records - classified or not - generated during his administration.
For the final nail in the Indictment coffin, we must jump back to the PRA where it specifically grants exceptions to NARA's restrictions:
§ 2205. Exceptions to restricted access"
Notwithstanding any restrictions on access imposed pursuant to sections 2204 and 2208--
(1) the Archivist and persons employed by the National Archives and Records Administration who are engaged in the performance of normal archival work shall be permitted access to Presidential records in the custody of the Archivist;
(2) subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available--
(A) pursuant to subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding;
(B) to an incumbent President if such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available; and
(C) to either House of Congress, or, to the extent of matter within its jurisdiction, to any committee or subcommittee thereof if such records contain information that is needed for the conduct of its business and that is not otherwise available; and
(3) the Presidential records of a former President shall be available to such former President or the former President’s designated representative.
Despite NARA being given legal custody of all Presidential records, Congress has carved out - in § 2205 - "Exceptions to restricted access". Incredibly, for two years now, NARA has been stamping its feet as if no exceptions to their custody exist. These exceptions are not an option given by Congress to NARA whereby the Archivist decides, on a case by case basis, who gets an exception and who doesn't. No. Congress has granted very specific exceptions textually in the statute, and NARA has no discretion thereto whatsoever.
Section (1) grants the most limited exception of the three listed, for NARA staff "in the performance of normal archival work". The mode of access granted is not possession or control, as such workers "shall be permitted access to Presidential records in the custody of the archivist". They may "access" those Presidential records in actual physical "custody" of NARA.
Section (2) grants a broader mode of exception to restricted access in three circumstances; A) pursuant to subpoena or judicial process; B) to an incumbent President if needed for the conduct of current business, if such records are not otherwise available; C) to the House or Senate if needed for conduct of their business, and such records are not otherwise available.
The broader mode of access granted in Section (2) is that such records "shall be made available". Since Congress could have limited Section (2) to "access" only - that such records "shall be made available" thereby grants access as well as possession for this exception. Section (2) doesn't require a Judge or a sitting President, or Congress, to come to NARA to view such Presidential records. Instead, it makes the records available to them.
In Section (3), Congress has granted the broadest exception of restricted access to former Presidents. First note that Congress has used a different term for the exception here, in that "the Presidential records of a former President shall be available to such former President". There's no "if needed for official business" limitation in Section (3), so the exception does not require any reason for a former President to possess such records.
The exception is much broader than the "access" given to NARA staff in Section (1), but it's also additionally much broader than the exception given in Section (2), in that it does not say that NARA shall make such records available to a former President. Instead, it says that such records "shall be available". The Legislature here establishes that a former President shall have the broadest possible exception to restricted access by granting him access, possession and control over Presidential records from his administration whenever he wants them, and for any reason, or no reason at all.
This conclusion is further reinforced by a closer look at the Section (2) exception, which is "subject to any rights, defenses, or privileges which the United States or any agency or person may invoke". But no such limitation is placed upon the exception given to former Presidents in Section (3). (Also note that this squarely defeats the Indictment Counts pertaining to agency records, since all agency related documents in the Indictment fall under the exception listed in 5 U.S.C. 552(b)(1)(A). I will publish a separate piece on that issue soon.)
Also relevant is that the PRA at §2203(a) is subject to "other provisions of law", whereas §2205(3) is not, which is further proof that Congress has granted to former Presidents unrestricted access to their Presidential records without requiring security clearance or a SCIF. Indeed, NARA’s own FAQ recognizes that it is routine for former government officials, and even private contractors, to have retained classified materials to which they gained lawful possession of in the course of their duties:
“Former government officials and contractors have been known to retain papers containing classified national security information and eventually donate them to private archives.”
COOK v NARA and OTHER PRECEDENTS
NARA is fully aware of the the most on point precedent in this regard, Cook v. NARA, wherein the 2d Circuit held that former Presidents have an “unrestrained,” “unrestricted”, and “unfettered” right to use their Presidential papers “completely privately”, even after the PRA went into effect. The Court of Appeals - citing directly to the PRA at §2205(3) - held that NARA has no police power to control how a former President uses his papers:
“Indeed, the statute expressly gives the former officials unrestrained access to their presidential and vice-presidential records. 44 U.S.C. § 2205(3) (‘[T]he Presidential records of a former President shall be available to such former President or his designated representative.’). It is therefore not NARA's duty to police how the former officials use the presidential records they receive. In light of this, disclosure of the former officials' requests for records would do little to advance the public understanding of how NARA is carrying out its duties.” Cook v. Nat’l Archives & Records Admin., 758 F.3d 168, 173 (2d Cir. 2014).
President Trump has been charged in the Indictment for 31 Counts/documents under 18 U.S.C. 793(e), which begins as follows:
e) Whoever having unauthorized possession of, access to, or control over any document...
Stop there! Why? Because the DOJ can't establish unauthorized possession, access or control, so it can't go any further into the statute. Since the PRA, FPA, and PTA grant former President Trump perpetual access, control and lawful possession of Presidential records from his administration - after his term ended - he can't be prosecuted under 793(e) - regardless of whether he declassified the documents before his term ended or not. Declassification is a red herring. President Trump had lawful possession regardless. (As for control, the PRA has multiple provisions giving former Presidents control over access to their Presidential records after their term ends.)
In support of this analysis, I have pointed to three important intel related precedents: U.S. v. Morison; U.S. v. Truong Hung; and U.S. v Rosen, all of which state that a person has authorized lawful possession of classified NDI documents if they had the necessary security clearance when they first “gained access” to the material in the course of their official duties working for the government, which nobody can deny as to Trump, since he gained access as POTUS:
“Section 793(e) contains another possible ambiguity. It punishes only those who have ‘unauthorized possession’ of national defense information. The trial judge provided adequate content for this phrase by advising the jury that a person would have authorized possession if he had an appropriate security clearance and if he gained access to the document because it was necessary to the performance of his official duties. U.S. v Morison, 604 F. Supp. 655, 662 (D. Md. 1985).” (Emphasis added.)
The Court can accept all of the facts stated by Jack Smith in the Indictment as true, and - as a matter of law - all 31 of the 793(e) counts must be summarily dismissed. Trump doesn't need to contest a single fact in the Indictment to have these counts dismissed before trial.
OBSTRUCTION HOAX
I will prepare a follow-up piece to the obstruction related charges, but just note this going forward: nowhere in the Indictment is it alleged that Donald J. Trump knew Attorney 1 (Evan Corcoran) would only search the "Storage Room", nor does the Indictment allege that Trump directed him to only search the "Storage Room". In fact, Jack Smith effectively exonerates Trump on these obstruction related charges in paragraphs 56 (and 63) of the Indictment, wherein the Special Prosecutor states that Trump "confirmed his understanding with Trump Attorney 1 that Trump Attorney 1 would return to The Mar-a-Lago Club on June 2 to search" for any documents responsive to the subpoena.
But even more damning on the obstruction hoax is that the DOJ has quietly backed off their initial assertion in the warrant application - that Attorney 1 “was advised” the Storage Room was the only locale of documents responsive to the subpoena. The DOJ changed the facts asserted, now claiming only that Attorney 1 “represented” the Storage Room as the sole repository.
If Attorney 1 wasn’t “advised” by Trump to only search the “Storage Room”, then no obstruction happened in moving the boxes. This is because moving boxes from one area at Mar-a-Lago to another area can never be obstruction, since the Indictment tells us clearly that Trump "confirmed his understanding" that all of Mar-a-Lago would be the locale of the search, not just the "Storage Room".
Leo Donofrio, Esq.
June 23, 2023 [Precedent links and obstruction hoax info updated, June 30, 2023.]