The Espionage Act and the Presidential Records Act

An evidentiary burden Special Counsel Smith may not win

This is a guest post from our friend

Shipwreckedcrew

, a former federal prosecutor who currently represents 13 January 6 defendants facing trial. (He also represents three January 6 defendants whose cases are on appeal.) All revenue from his paid subscriptions is used to cover expenses incurred in representing clients charged with crimes related to January 6. You can contribute directly to that cause at the January 6 Legal Defense Fund page on GiveSendGo.

The Presidential Records Act is not a clear path to exoneration for former President Trump.

But the Espionage Act is not “cut and dried” in its prohibitions when applied to a former POTUS who on his last day in office had absolute — ABSOLUTE — authority to see and possess every document and piece of information held by the Executive Branch.

Trump has been charged by the Smith SCO with 31 counts of violating the “Espionage Act” — Title 18 United States Code Section 793.

Section 793(e) reads as follows:

(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 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 entitled to receive it

Counts 1 through 31 of the indictment include on the following charging language from this subsection of Sec. 793(e):

Immediately below this language, the Indictment lists in serial fashion 31 separate documents which the Special Counsel alleges contained “national defense information” — “NDI” for short.

It should be quite obvious that SCO Smith made a deliberate decision to NOT include in the charging language a large portion of the statutory verbiage created by Congress. That’s not necessarily unusual in the abstract, but in considering what Smith included and excluded, it forecloses some theories of liability that others might think Smith will pursue. Drafted in the fashion that it is, this case is all about one thing — and one thing only unauthorized retention.

Every federal crime is composed of several “elements” that are individually stated for a jury in what are called “Jury Instructions” that are fashioned by the Judge and read to the jury at the conclusion of a trial before they begin deliberations. Prosecution and defense often battle fiercely over the precise language of the final instructions as that language will shape the way that the attorneys argue the evidence to the jury in closing arguments. Cases are quite literally won and lost based upon the final language in jury instructions that explain the elements of each offense.

Fortunately, the jury instructions for a Sec. 793(e) charge are pretty simple:

1. The defendant had unauthorized possession of a document;

2. The document related to the national defense; and

3. The defendant willfully retained the document and failed to deliver it to the officer or employee of the United States entitled to receive it.

Here are the key words from those jury instructions:

• Unauthorized

• Possession

• Document

• National Defense

• Willful

• Retained

This is how trial attorneys break down theories of the case into component parts, and then focus on the testimony and exhibits that will be used to prove each of these key components during the trial — or not, from the perspective of the defense.

Paragraph 77 of the Indictment, which starts on page 28 of the 49 page document, is where the REQUIRED allegations begin. Everything from page 1 to 27 is “story telling” by the Special Counsel, included only so it could be reported by the dutiful anti-Trump press. There is a substantial likelihood that significant portions of the allegations on the first 27 pages won’t be heard by a trial jury as they aren’t relevant to the elements of the offense. SCO Smith could have started the indictment on page 1 below the caption with Paragraph 77 and it would have been legally sufficient. Everything he included before Paragraph 77 he did for “effect” — it was included for no purpose other than to drive the narrative that Trump is guilty of doing terrible things, when the only crimes actually ALLEGED in Paragraph 77 involve retaining documents he was not authorized to possess.

Let’s now turn to the language in the indictment and consider why the statutes passed by Congress make a straightforward analysis of where the law takes us almost impossible to decipher.

As we go through this analysis, understand that the confusion revealed is actually a path to exoneration for a former POTUS that probably would not be available to any other individual. It is quite likely that the trite saying “No one is above the law” might not be altogether true in some limited circumstances — like here.

Start with this observation of the charged language — both in the statute as a whole and in the charging language of the indictment — “Whoever having UNAUTHORIZED possession…”

Donald Trump was POTUS until Noon on January 20, 2021, by operation of law that fixes Presidential terms as beginning and ending at that time and on that day following a Presidential Election in November of the previous year.

Now note the following language used by SCO Smith in Paragraph 24 of the Indictment:

“In January 2021” — well, up through Noon on January 20 — as POTUS, Donald Trump had AUTHORIZED possession of every one of those documents, classified or otherwise. This is a tacit — and what will later become an actual admission by SCO Smith that Trump did have authorized possession of some/all the documents at some point in time.

How does the Smith SCO criminalize this “authorized” possession? With a naked little sentence at the end of Paragraph 4 on page 2 that he is going to have to establish to be true by virtue of some magic wand that is waived at precisely Noon on January 20:

Says who? Apparently, Special Counsel Jack Smith.

If a soon to be ex-POTUS is carrying a briefcase containing NDI information away from the White House on January 20 at 11:45 a.m., then enters a vehicle and drives to Andrews Air Force Base for his trip home, is he subject to being pulled from the vehicle, wrestled to the ground and handcuffed by the FBI at 12:05 p.m. when he steps out of the vehicle for “unauthorized possession and retention” of documents containing NDI based merely on the passage of time? The POTUS/Ex-POTUS has done nothing while in the vehicle along the route. He was not a law breaker when he entered the vehicle, but now he’s a potential felon when he steps out of the vehicle?

Yes — this is an exaggeration to the point of absurdity that would never happen. But this is how you test the application of legal principles — do they stand up to scrutiny when they are subjected to argumentum ad absurdum.

This is where the Presidential Records Act enters the picture as a potential source of confusion that will likely be advanced by the Trump legal team to show a lack of “willfulness” with regard to records that Trump retained — even IF his continued possession after January 20 was “unauthorized.”

The definition of “willfulness” in the context of Sec. 793(e) is well established in numerous cases because many inferior executive branch bureaucrats have been prosecuted for having unlawful possession/retention of NDI materials.

“Willfully” means to act with knowledge that one’s conduct is unlawful and with the intent to do something the law forbids, that is to say with the bad purpose to disobey or to disregard the law.

Not every federal crime includes a requirement that the defendant acted “willfully”. This is different from “intent.” All that is meant by “intent” is that your conduct — your physical actions — were deliberate and not the result of some mistake or involuntary movement, i.e., you walked into the building on your own, you weren’t dragged inside by others.

“Intent” does not involve an “intention” to break any laws.

But when Congress adds “willfully” to a statute, it is adding a layer of “guilty mind” on top of the requirement that unlawful conduct be intentional. Now it is necessary for the Government to prove not only that you intended your conduct, but that you engaged in that conduct knowing you were doing something forbidden by law and you did it for the purpose of disobeying that law.

This is one of the rare instances where “ignorance of the law” is a defense.

And now we come to the PRA — the Presidential Records Act.

The PRA creates a process for an exiting POTUS to sort through records accumulated during his time in office to determine what records he can take, destroy, or deliver to the National Archivist for retention and safe storage. This statute was passed in 1978 so it is of relatively recent vintage, and only three times has it come into play when the exiting POTUS had very little time to engage in the process after losing a race for re-election — Jimmy Carter, George H.W. Bush, and Donald Trump. The process goes much more smoothly for a POTUS exiting after his second term as the POTUS’s staff knows months ahead of time when all such decisions must be made.

Generally, personal records can be kept or destroyed and Presidential Records are to be delivered to NARA. So what is the process for deciding which records go into which pile, and how does the now famous “Clinton Socks” decision comes into play?

Here is how Presidential records are defined in the statute:

(2) The term "Presidential records" means documentary materials … created or received by the President, the President's immediate staff, or a unit or individual of the Executive Office of the President … in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term—

(A) includes any documentary materials relating to the political activities of the President or members of the President's staff, but only if such activities relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; but

(B) does not include any documentary materials that are (i) official records of an agency (as defined in section 552(e)  of title 5, United States Code); (ii) personal records; (iii) stocks of publications and stationery; or (iv) extra copies of documents produced only for convenience of reference, when such copies are clearly so identified.

Some of Trump’s critics — including former DOJ officials on both sides of the aisle — have pointed to the exclusion of “official records an agency” as the basis to assert that the documents involved in the indictment could never have been deemed to be “Presidential” or “Personal” records. I’m not so sure that is correct.

The first problem is that while “Agency” is defined — there is a reference to 5 U.S.C. Sec. 552(e) — the phrase “official record” is not defined.

Records that remain located at the various federal agencies are certainly “agency records.” But what about “Agency Records” that are “received by the President … that have an effect upon the carrying out” of his official duties? Do such “agency records” now become “Presidential records” as well?

Nothing in the statute suggests this is a binary “either/or” determination. If it is not, then the “record” is now subject to the PRA.

But the question of which pile to place it in — “Presidential” or “Personal” — is where the problems really begin. If a record is determined by POTUS and his staff to be “Personal”, there is no clear mechanism in the PRA to have that determination reviewed or reversed by NARA or anyone else — even if objectively wrong or made in bad faith.

That is what the “Clinton Sock” case is about. Upon exiting the White House, Bill Clinton took audiotape recordings that included discussions about certain matters concerning his time in the White House. He claimed the audiotapes were “personal records.” The existence of the tapes came to light when an author of a book on Clinton referred to the tapes and their contents.

More than a decade letter, Judicial Watch filed a lawsuit seeking to compel NARA to recover the tapes and make them available to the public under FOIA. But Judge Amy Berman Jackson in the District Court for the District of Columbia held that NARA didn’t have authority to revisit the “Personal” v. “Presidential” classification. She noted that the language of the statute left the classification of “Personal v. Presidential” records to the President, citing Sec. 2203(b) which states:

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.

Judge Jackson noted that the D.C. Circuit Appeals Court had made a quite definitive statement on “judicial review” regarding the PRA, although she noted that the question in the earlier case did not strictly involve the “Personal” v. “Presidential” determination. Here’s what the Appeals Court said in that earlier case:

We conclude that permitting judicial review of the President's compliance with the PRA would upset the intricate statutory scheme Congress carefully drafted to keep in equipoise important competing political and constitutional concerns. We therefore hold that the PRA is one of the rare statutes that does impliedly preclude judicial review. Armstrong v. Bush, 924 F.2d 282, 290 (D.C. Cir. 1991).

That is the Court of Appeals for the D.C. Circuit, not the 11th Circuit which is where the Trump indictment has been filed. And the facts of “Armstrong” did not involve “Personal” v. “Presidential” determinations. But it would be hard to imagine a more definitive pronouncement from an appeals court that ruled out judicial interference with regard to a POTUS’s compliance with the PRA in a Presidential records management dispute following his departure from office.

This returns us to the question of whether Trump had the initial authority to determine the nature of the records of his time in office, and whether questions about the “correctness” of those decisions is subject to any oversight or review?

It Trump believed — even mistakenly based on bad advice — that he was entitled to take documents with NDI with him as his “personal” records based on his own determination in that regard as POTUS, then establishing “willfulness” under the statute is going to be an issue at trial.

The Smith SCO is going to try to prove — and maybe they will succeed — that Trump knew what his legal obligations were with respect to the documents in question and he purposely and intentionally retained those documents for the purpose of disobeying the law. In this regard, his own statements might end up coming back to haunt him.

BUT, some of what he might have known or been told is going to have to come from attorneys who served him, and were forced to testify and provide their notes to the grand jury for the purpose of showing what Trump knew and was told when he declined to return the documents.

Beyond the scope of this particular article is a close analysis of the legal questions that surround the decision to strip Trump of the attorney/client privilege and force those attorneys to testify. Whether that decision was legally sound will certainly be tested in the months ahead as that will be hotly disputed through pretrial motions. None of the briefing that led to that decision has been made public as it was all done under seal since the grand jury proceedings were taking place in secret. But we will soon see those arguments made in Florida in open court. Until then, it would be mere speculation to engage in any analysis of whether that decision will stand up to scrutiny such that those same attorneys would be required to testify in a criminal trial.

None of these questions lead themselves to simple or easy answers. All Espionage Act cases in the past have involved members of various government bureaucracies who had access to NDI documents as part of their jobs, and well-understood the limits on how they could possess and make use of such documents. When those individuals were prosecuted for unlawful possession/distribution/retention of such documents, it was easy to prove their actual knowledge of the illegality of their conduct because it was part of their training and daily job functions to understand the limits.

That’s not true of an ex-POTUS who lawfully took documents with him when he left office.

As noted above, all revenue from paid subscriptions to Shipwreck’s Substack page are used to cover expenses incurred in his representation of defendants charged with crimes in connection with January 6. You can make direct contributions to the January 6 Legal Defense Fund on GiveSendGo.