The FBI’s warrant for its Mar-a-Lago raid invoked the Espionage Act which meant that we were always going to end up here. The focus on Clinton ally Jack Smith’s indictment has been the Espionage Act despite its obvious inappropriateness when it comes to a former president.
The Wall Street Journal spells out the problem.
The indictment levels 37 charges against Mr. Trump that are related to his handling of classified documents, including at his Mar-a-Lago club, since he left the White House. Thirty-one of the counts are for violating the ancient and seldom-enforced Espionage Act for the “willful retention of national defense information.”
But it’s striking, and legally notable, that the indictment never mentions the Presidential Records Act (PRA) that allows a President access to documents, both classified and unclassified, once he leaves office. It allows for good-faith negotiation with the National Archives. Yet the indictment assumes that Mr. 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. This will be part of Mr. Trump’s defense.
The other counts are related to failing to turn over the documents or obstructing the attempts by the Justice Department and FBI to obtain them. One allegation is that during a meeting with a writer and three others, none of whom held security clearances, Mr. Trump “showed and described a ‘plan of attack’” from the Defense Department. “As president I could have declassified it,” he said on audio tape. “Now I can’t, you know, but this is still a secret.”
The feds also say Mr. Trump tried to cover up his classified stash by “suggesting that his attorney hide or destroy documents,” as well as by telling an aide to move boxes to conceal them from his lawyer and the FBI.
Let’s flash back for a moment to the Clinton emails investigation. Hillary Clinton was also investigated under the Espionage Act. Why wasn’t she charged? Ask former FBI Director Comey.
He characterized the investigation findings as showing that Clinton and her team were “extremely careless in their handling of very sensitive, highly classified information” but he said there was no clear evidence they intended to violate the law.
Still, Comey said the FBI’s recommendation is that Clinton not face criminal charges for her actions.
“Although there is evidence of potential violations regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case,” he said.
Comey said decisions on whether or not to bring charges are partly based on “how similar situations have been handled in the past.”
“In looking back into our investigations into the mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts,” Comey said. “All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of information exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”
Comey didn’t deny that Hillary Clinton exposed classified information to hackers or anyone with access to her account, he argued that she hadn’t really intended to do it. (There’s no evidence that foreign actors actually gained access to any classified materials being kept at Mar-a-Lago despite assorted insinuations on the matter.)
And this is where we’re right back in process crimes territory.
The entire basis for the distinction between the two cases arises from their different handling. Clinton and her people were given a pass, while Trump and his people were aggressively targeted by a politically motivated investigation.
The different outcomes led to different responses and then to different charges.
Comey claimed that “no reasonable prosecutor” would charge a former top government official for retraining and mishandling classified documents under the Espionage Act, but we’re long since past any kind of reasonable legal standard when it comes to Trump.
Once the FBI got involved, then it generated the materials for charging Trump with obstructing its investigation and ‘knowingly’ retaining documents.
Process crimes have been at the heart of the lawfare directed by the Obama and Biden Department of Justice against Trump and his allies. And process crimes, while occasionally legitimate, are convenient tools for manufacturing crimes where none would have otherwise existed and for punishing defendants who resist the process.
Despite all the headlines, the case here comes down to process crimes generated by the investigation. Subtract the investigation and there would be no basis for going past Comey’s “reasonable prosecutor” standard. (Not that Comey had any right to express such an opinion or should have done so.)
After all these years, the lawfare is still based around cases it generates by investigating Trump. The investigation is therefore the crime.