LOS ANGELES.–Expressing frustration with U.S. District Court Judge Aileen Cannon, the judge presiding over former President Donald Trump’s classified documents case, Special Counsel Jack Smith didn’t know how to respond to Cannon’s request for jury instructions. Smith has a one-sided theory of Trump’s prosecution based on Democrat talking points that Trump illegally harbored classified national security documents, seeking to prosecute him under the 1917 Espionage Act. Smith’s theory of the case as always questionable, but, more importantly, extreme, considered the old, worthless documents were found Aug. 8, 2022 by the FBI in White House moving boxes in Trump’s locked Mar-a-Lago basement. How Smith could possibly charge Trump under the Espionage Act is anyone’s guess. Trump’s attorneys now argue that and documents found at Mar-a-Lago were Trump’s personal property.
Smith didn’t account for how to prosecute Trump under the Presidential Records Act [PRA], when he president and his lawyers argue that whatever documents the FBI found raiding Trump’s Mar-a-Lago residence were his own property as defined under the PRA. Smith assumed he could operate under the Espionage Act where it’s considered a violation of the act to harbor national security documents. Smith reacted harshly to Cannon’s jury instructions when faced with changing the theory of the case against Trump. So much pressure comes from the Democrat Party to interfere with Trump’s 2024 presidential election, now that polls show that he’s beating Biden in key battleground states. Smith wants Cannon to reject Trump’s legal arguments about the PRA, accepting only his convoluted theory under the 1917 Espionage Act that Trump endangered U.S. national security.
Smith has had his way with partisan judges like Tanya Chutkan in the Election obstruction case, accepting facts that are not in evidence. Trump has been charged by Smith of obstructing a government proceeding to certify the Electoral College vote in the 2020 presidential election. Chutkan should have questioned Smith about his evidence that shows beyond-a-reasonable doubt that Trump planned and orchestrated the Jan. 6 Capitol insurrection. Chutkan should ask Smith what evidence he has to show Trump participated in any way in the insurrection. Chutkan could also ask Smith to define insurrection, since rioting on Jan. 6, 2021 does not constitute insurrection. But no, Smith is content to charge Trump without facts or defining his terms. How could Trump be charged in obstruction anything without proof that he participated in Jan. 6, 2021 Capitol riots?
When it come to Judge Aileen Cannon, Smith has his Democrat-biased prosecutors that want to trample on Trump constitutional rights to a fair trial, especially when the Special Counsel claims that Trump violated national security. What does Smith think Biden does when he funds proxy war against the Kremlin, upending generations of diplomacy, détente and arms control with the Kremlin? Doses Smith really think he has an Espionage Act case against Trump for retaining classified docs he claims as his personal property under the PRA? Smith has been completely thrown for a loop because Cannon wants jury instruction that include recognition of Trump’s rights under the PRA, allowing him to retain documents of his choice, including worthless, old classified docs that have no bearing at all on U.S. national security or any other threat to the U.S. government.
Smith miscalculated badly charging Trump in the classified docs case when he looked the other way when it came to 81-year-old President Joe Biden also possessing classified docs from his time as U.S. Senator and Vice President. Special Counsel Robert Hur determined March 12 that Biden’s memory was so bad, he couldn’t get a sympathetic jury to convict Biden of illegally retaining classified docs. But when it comes to Trump, Smith can’t imagine Trump has a right to argue under the PRA that whatever documents were found at Mar-a-Lago they were within the president’s rights. “The PRA’s distinction between personal and presidential records has no bearing on whether a former President’s possession of documents containing national defense information is authorized under the Espionage Act and the PRA should play no role in the jury instructions,” Smith said.
Smith has been caught flat-footed with a failed legal theory that he can charge and prosecute Trump under the Espionage Act. Not only do the classified docs have no national defense significance, Trump’s lawyers argue that all documents are his personal property. Smith acts like he can make up legal precedent, forcing a square peg into a round hole, all because he’s Special Counsel and can define what he does legally. Smith still has to have a coherent legal theory or probable cause for charging Trump under the Espionage Act. “Indeed, based on the current record, the PRA should not play any role at that all,” Smith told Cannon, saying, in effect, he gets to make up whatever law Trump violated. Smith finds himself dumbfounded that he could be so reckless with his charges against Trump that his Espionage Act theory has just fallen apart.
About the Author
John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He’s editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.
