Recently, the public has been inundated with stories, posts, and discussions about the
latest Trump indictment by the Biden Justice Department (DOJ). Two areas being
probed and attempting to penetrate, perhaps in a desperate effort to get at least “one”
count to “stick.” Their attempt is to claim President Trump violated the Espionage Act
of 1917.
The “Espionage Act” has no relevance to anything former President Donald has
done. In fact, Trump, as does any other president in modern times, has been protected
by the Presidential Records Act (PRA) of 1978.
The PRA provides broad authorities to the President of the United States (POTUS) for
maintaining in his possession official federal documents, materials and information
pertaining to his administration. Further, the PRA provides authority to a President to
declassify information for whatever reason chosen. Certainly, since Jimmy Carter, all
presidents have been protected by the PRA and there has been no real issues until now.
A number of constitutional lawyers most recently - Tom Fitton, Mike Davis, Alan
Dershowitz and numerous others - have articulated concerns and criticisms over DOJ’s
indictment against President Trump, issuing their own extensive legal analysis.
Of all their analysis, two single issues standout most:
The Indictment dishonestly ignores the U.S. Constitution, the PRA, legal
precedent, the DOJ and U.S. Archives' previous positions that the White House
records a president takes with him when he leaves the White House are
presumptively personal and not subject to review by partisan Biden appointees at
DOJ or U.S. Archives. Under the Constitution, federal law, and precedent, none
of the documents are currently "classified" or "national defense information" that
restricts President Trump's handing of them. They are ALL his personal records
and, frankly, should be returned to him. Again, the PRA protects President
Trump.
It is in fact abundantly clear that the case going forward by the Biden DOJ is a
politically motivated case of “Prosecutorial Misconduct,” since there is no crime
on the part of President Trump. If there was, then every prior POTUS would be
guilty of the same. If justice prevails, this indictment won't survive scrutiny by
honest, constitutionalist judges and should be thrown out.
Looking more closely at the indictment, as it pertains to the claimed charges against the
“Espionage Act,” and for those who aren’t familiar with this area of the law, here is what
the act states.
Espionage Act of 1917 - 18 U.S.C. § 793:
- The Act was a law adopted on June 5, 1917, just after the U.S.'s entry into World War
One. It remains law today, although it has been amended numerous times.
Originally codified under Title 50, but changed to Title 18, criminalized espionage,
interfering with military operations and foreign policy, obstructing the newly instituted
draft, and encouraging insubordination and disloyalty. It served to suppress opposition
to the United States entry into World War I by making criticism of U.S. policy a
“treasonable” offense.
- In combination with the Sedition Act of 1918, which amended it, the Act was used as
the basis for launching an unprecedented campaign against political radicals, suspected
dissidents, left-wing organizations, and aliens.
- The Espionage Act of 1917 criminalized any attempt to interfere with the operations of
the U.S. military, cause disloyalty in the US military, promote the success of U.S.
enemies by conveying information.
- Follow on amendments addressed Constitutional conflicts between the Espionage Act
and the First Amendment.
My criticisms of the Espionage Act stem from it conflicting with a number of
Constitutional issues. That being the vague and broad language of the Act, as well as the
fact that - contrary to popular misconceptions - the Act doesn’t really have anything to
do with “classified” information. Note, this highlights a common misunderstanding
pertaining to the Espionage Act. So again, it does not apply to this indictment against
President Trump.
Furthermore, it is critical to address that the current U.S. “classification system” was not
put in place until 1951 (under Executive Order 13526, and the latest in a long series of
executive orders on the topic of national security beginning in 1951). It should be noted
that the entire U.S. national security classification system is a post-WW2 innovation
that came about from lessons learned and the ushering in of the “Cold War” starting
with the National Security Act of 1947, just to make that clear.
The historical origins of the Espionage Act and its underlying intent historically is based
on impediments to U.S. involvement in World War I -- which was in the midst of a full-
fledged conflagration at the time. That “intent,” as most legal experts agree, was not so
much dealing with national security, as it was with “suppressing dissent” in the United
States against the war effort.
The Espionage Act is one of the ‘most dangerous and unconstitutional statutes’ ever
signed by Woodrow Wilson in 1917. Its intent was to imprison dissidents who were
opposed to the U.S. war effort.
Several Constitutionalists have pointed out is its comparison to the very nature of the
First Amendment.
“Every civil libertarian, every liberal, every progressive, every Democrat had been
against the Espionage Act and it’s use for the last 100-years. Now, suddenly, they are all
calling for it to be ‘applied broadly’ to President Trump’s conduct that has nothing to do
with espionage. There is no allegation that President Trump ever endangered U.S.
national security by providing classified material to enemies, or sold classified
information to adversaries in conflict with the U.S. politically, diplomatically or
militarily.
So, the word "Espionage" is totally misleading and trying to apply the Espionage Act
against President Trump is misplaced legally for starters.
The closest reference that the DOJ has in attempting to catch President Trump on is an
alleged audio, the so-called “Bedminister tape” - where he was explaining and
referencing the classification of a document.
In the indictment, however, the audio was manipulated by the DOJ, but provides for a
perfectly plausible explanation. In that incident, President Trump is claimed to have
held up a piece of paper to demonstrate and emphasize a point, stating; “like this,” but
indications are it was not an actual classified document.
Nevertheless, DOJ Special Counsel Jack Smith “edited out” Trump’s words “like
this.” As of now, there is no proof that President Trump has the reference document
and it is actually unclear whether the document in question even exists. So, from that
standpoint, the Espionage Act is not relevant in any way, shape, or form.
From a legal standpoint, the Espionage Act is a "possession" statute, and even the
indictment count references provisions of the Act that notes "willfully possessing”
classified material for illicit and illegal intent and purposes.
That does not apply to this case.
President Trump’s possession of national security material whether classified or
unclassified is authorized to former presidents. Under the law and national security
directives and the PRA, a president has the right to possess and maintain any
documents that had anything to do with his administration.
When pundits refer portentously to the Espionage Act in connection with Trump’s
indictment, more likely than not their intention is to smear the former president by
comparing and conflating him with the likes of Aldrich Ames and Robert Hanssen, who
were spies and imprisoned for selling out America. Certainly, that is what is at play
here.
Their message is clear - Make President Trump look like a traitor to the nation - claim
he sold out the US.
Special Counsel Jack Smith’s foundational argument for his indictment against Trump
is this:
The DOJ is not arguing a “classified documents case.” The entire legal framework is
centered around documents DOJ defines as vital to the US national defense, predicated
on this portion of the Espionage Act, 18 U.S. Code § 793(e) violation:
“18 U.S. Code § 793 (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.”
Certainly, that is not the case whatsoever – President Trump did not commit any such
act that would “injure of the United States or give the advantage to another foreign
nation.”
Nevertheless, despite the verbose language in the indictment, a key element of Lawfare,
to that end, weakens this criminal case.
Certainly, the prosecutors knew that before they filed it.
President Trump’s situation is NOT what the Espionage Act purports to be about to
bring a criminal case.
The use of the Espionage Act has been prone to abuse, and it has always had its critics
because of the very broad and vague language, such as “relating to.” It would be
critically important for President Trump’s legal team to attack from this angle in pre-
trial motions.
In conclusion on the Espionage Act, the PRA essentially covers virtually all counts in
this DOJ indictment, yet it is not mentioned at all. The PRA, not the Espionage Act,
controls a former president's handling of his own presidential records. Period.
Secondly, the reference and inclusion of the Espionage Act was clearly directed toward
the ‘politicalization of the indictment against President Trump.’ The indictment’s
language confirms the DOJ’s indictment of Trump is in and of itself “political.” Hence,
since the charges are politically based and driven -- there is no crime.
In the end, whether you love or hate President Trump, this indictment brought forth by
the Biden DOJ is a fraught moment for America. For the first time in U.S. history, the
prosecutorial power of the federal government has been used against a former President
who is also running against the sitting President.
That alone makes this situation far graver than the previous indictment by New York
prosecutor Alvin Bragg. This will roil the 2024 election and U.S. politics for years to
come. It is a destructive indictment. Let’s hope prosecutors understand the forces they
are about to unleash.
Americans will inevitably see Trump’s indictment as the “Garland-Biden political
indictment” by the most corrupt anti-American administration in its 250-year history.
It is clearly a recklessly bad faith and horrifically politically driven indictment to “GET
TRUMP.”
But you knew that already.
________________________________________________________________
Jim Waurishuk, Colonel, USAF (Ret.)
Retired USAF Colonel, serving 30-years as a Tactical Air Control Party (TAC-P), Special
Reconnaissance, and Special Mission Strategic Intelligence Officer to multiple Tier 1 units as part of the
Joint Special Operations Command (JSOC) and USSOCOM. Served as Chief, Psychological Operations
- Strategic Influence JCS/National Command Authority. Served as Deputy Director for Intelligence U.S.
Central Command, and on the White House National Security Council (NSC) staff. Former Chairman,
Hillsborough County Republican Party and the Republican Party of Florida Executive Board. Chairman,
Program on Fifth Generation Warfare.
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