Posts tagged with "Espionage Act"

Special Counsel blasts judge’s jury instruction request in Trump documents case

April  4, 2024

In perhaps prosecutors’ strongest rebuke yet to how Judge Aileen Cannon has handled the classified documents case against former President Donald Trump, Special Counsel Jack Smith said in court filings late on Tuesday evening, April 2, that the judge had ordered briefings based on a “fundamentally flawed” understanding of the case that has “no basis in law or fact,” reports CNN.

Smith’s team harshly critiqued Cannon’s request for jury instructions, which embraced Trump’s claims that he had broad authority to take classified government documents and said it would seek an appeals court review if she accepted the former president’s arguments about his record-retention powers.

In an unusual order last month, Cannon asked attorneys on the classified documents case to submit briefs on potential jury instructions defining terms of the Espionage Act, under which Trump is charged over mishandling 32 classified records.

Specifically, Cannon asked the special counsel and defense attorneys to write two versions of proposed jury instructions:

  • The first scenario would instruct a jury to assess whether each of the records that Trump is accused of retaining fell into the categories of “personal” or “presidential” as laid out by the Presidential Records Act, a post-Watergate law that governs how White House records belonging to the government are to be handled at the end of a presidency.
  • The second version Cannon asked for assumes that, as president, Trump had complete authority to take any records he wanted from the White House, which would make it nearly impossible for prosecutors to secure a conviction. If she were to institute this sort of instruction, Smith’s team said, “the Government must be provided with an opportunity to seek prompt appellate review.”

“Both scenarios rest on an unstated and fundamentally flawed legal premise—namely, that the Presidential Records Act and, in particular, its distinction between ‘personal’ and ‘presidential’ records, determines whether a former President is ‘authorized,’ under the Espionage Act, to possess highly classified documents and store them in an unsecure facility,” the special counsel’s team wrote.

If allowed to be presented to a jury, prosecutors said, “that premise would distort the trial.”

Cannon’s request came days after she heard arguments over whether the Presidential Records Act granted the former president broad authority to characterize any record from his time in the White House as personal. Trump’s attorneys claim he did have that authority and have asked the judge to throw out the criminal charges.

In their own proposed jury instructions filed Tuesday evening, Trump’s defense attorneys suggested that, in the first hypothetical, Cannon tell trial jurors that Trump was “authorized” by the PRA to “possess a category of documents defined as ‘personal records,’ both during and after his term in office.”

In the second scenario, defense attorneys wrote that “there can be no appropriate jury instructions relating to factual issues … because that scenario forecloses prosecution of President Trump.”

Trump’s proposal also challenges Smith’s ability to prove the former president kept the documents “knowingly”—meaning that he was aware it was against the law.

“Medical science has not yet devised an instrument which can record what was in one’s mind in the distant past,” Trump’s attorneys wrote.

Prosecutors have repeatedly said that the PRA is not relevant to the charges against Trump, as the conduct he is accused of happened after his term as president ended. Trump’s claim that he deemed the records personal are “pure fiction,” invented once the National Archives had retrieved boxes with classified information from Mar-a-Lago two years after he left office, they wrote Tuesday.

Their new filing sheds light on some of the evidence that investigators have collected about Trump’s record-keeping habits during his presidency.

According to the prosecutors’ account, there is no evidence that Trump designated the relevant classified records as personal when he left the White House; and the prosecutors said he got the idea that he did have such power many months later, from the leader of a conservative legal organization.

Cannon appeared skeptical that the charges should be outright dismissed during the hearing, but she said that Trump’s attorneys were making “forceful” arguments that may be appropriate to present to a trial jury.

Still, Cannon has not made an official ruling on the request to dismiss the case, and her request for hypothetical jury instructions appears to show that the judge is still considering how, or if, the PRA fits into the case at large.

Research contact: @CNN

Justice Department objects to releasing affidavit used to search Trump’s home

August 17, 2022

On Monday, August 15, the Justice Department contested making public the affidavit used to justify the search of former President Donald Trump’s home in Florida—saying its release would “compromise future investigative steps” and “likely chill” cooperation with witnesses, reports The New York Times.

In a 13-page pleading, filed in a federal court in southern Florida in response to requests by The New York Times and other news organizations to make public the evidence included in the document, prosecutors suggested that the department has undertaken a broad, intensive inquiry into Trump’s handling of some of the most secret documents of the government after he left office.

The prosecutors acknowledged interviewing witnesses in connection with the investigation of. Trump’s retention of the material. They also wrote that releasing the document could compromise the continuing investigation.

“Disclosure of the government’s affidavit at this stage would also likely chill future cooperation by witnesses whose assistance may be sought as this investigation progresses,” prosecutors wrote. They added that releasing the affidavit could harm “other high-profile investigations,” as well.

One of the reasons proposed by the government for not releasing the affidavit was to protect the identities of witnesses against death threats. On Monday, prosecutors in Pennsylvania unsealed charges against a man accused of repeatedly threatening to kill F.B.I. agents in the days after Trump’s property was searched.

The magistrate judge who signed the search warrant, Bruce E. Reinhart, ultimately will decide whether the affidavit should be released. It is unclear when he will rule on the news media’s request.

According to the Times, “The legal—and political—aftershocks from the search were still reverberating a week after F.B.I. agents appeared at the resort while the president was at his club in Bedminster, New Jersey.”

Trump—who has accused Attorney General Merrick Garland of conducting a politically motivated “witch hunt” and roughly rifling through his family’s possessions—claimed on Monday that the government “stole my three Passports,” in a post on Truth Social, the online platform he founded.

By late Monday, the Justice Department had contacted Trump’s legal team to retrieve the three passports—two of them expired and the third an active diplomatic passport, according to one of the former president’s lawyers, Evan Corcoran, and a spokesman for the department.

In a statement late Monday, the F.B.I. said that it “follows search and seizure procedures ordered by courts; then, returns items that do not need to be retained for law enforcement purposes.”

Garland agreed last week to release the warrant used to search Trump’s private club, but has resisted attempts to make public the underlying affidavit—a far more sensitive document that should contain, among other things, the reasons prosecutors believe there was probable cause that evidence of a crime could be found at Mar-a-Lago, Trump’s estate in Palm Beach, Florida.

The investigation into the mishandling of government documents—while known for months—had not been considered to be as significant as the department’s sprawling investigation into the attack on the Capitol, which has been moving closer to Trump and his top advisers.

Federal agents removed top secret documents when they searched Trump’s residence last week as part of an investigation into possible violations of the Espionage Act and other laws, according to a search warrant made public on Friday.

At least one lawyer for Trump signed a written statement in June asserting that all material marked as classified and held in boxes in a storage area at Mar-a-Lago had been returned to the government, four people with knowledge of the document said.

Even as the former president counterattacked, new details emerged of how Trump and his inner circle flouted the norms, and possibly the laws, governing their handling of government records.

According to two people with knowledge of the situation, Trump and his Chief of Staff Mark Meadows, the man who oversaw presidential records in the chaotic closing days of the administration, failed to organize an effort to collect, box, and deliver materials to the National Archives — as prior presidents former Vice President Mike Pence, did.

Instead, they often focused on settling political grievances and personal grudges, they said.

In the weeks leading up to Trump’s departure from the White House, officials discussed what to do about material that he had at various points taken up to the residence and that needed to be properly stored and returned.

By then, the staff secretary, Derek Lyons, known for trying to keep systems in place, had left the administration. Meadows said he would address such issues, according to a senior administration official.

As Mr. Trump sought to hold on to power, two of Pence’s senior aides—Marc Short, his chief of staff, and Greg Jacob, his counsel—indexed and boxed all of his government papers, according to three former officials with knowledge of the work.

Jacob spent the bulk of his final few days in government preparing the final boxes, with the goal of ensuring that Mr. Pence left office without a single paper that did not belong to him, one of the officials said.

Research contact: @nytimes