Documents Case Against President Trump Swerves Toward National Defense, but Can Jack Smith Prove Intent?

Alan Dershowitz tells the Sun that the Mar-a-Lago documents case is ‘too close a case to merit prosecution.’

AP/Andrew Harnik, file
President Trump at Mar-a-Lago in 2019. AP/Andrew Harnik, file

President Trump’s defense of his handling of classified records, to television host Sean Hannity during a televised town hall on Thursday, telegraphs a posture of defiance even as signs point to an indictment barreling around the bend. That tone also brings into focus Mr. Trump’s reality as both a candidate and a criminal suspect.

On the legal side of the ledger, black letter law generally requires prosecutors to prove both mens rea, or criminal intent, and show that the actus reus, or actual act, occurred. As Mr. Trump finds his groove on the campaign trail, his loquaciousness on what is an ongoing criminal investigation could confound Mr. Smith’s expected attempt to make charges stick.   

That is a difficult enough task that a longtime professor and attorney, Alan Dershowitz, tells the Sun that this is “too close a case to merit prosecution.” He points to the rule of lenity, an ancient protocol whereby in instances of ambiguity the court should apply the law in a fashion most favorable to the defendant. Mr. Dershowitz mentioned that he spent a whole course at Harvard Law School on these questions. 

When Mr. Trump was asked by Mr. Hannity about Special Counsel Jack Smith’s investigation into the documents found at his Mar-a-Lago manse, he responded: “I don’t know anything about it. All I know is everything I did was right.” He added, “We have the Presidential Records Act, which I abided by 100 percent.” He attacked President Biden for his handling of documents. 

This assertion of rectitude comes on the heels of a recent CNN town hall, where he asserted that he was “allowed to” take classified documents from the White House. He claimed “the absolute right” to take the documents to Mar-a-Lago.  “When we left Washington, we had the boxes lined up on the sidewalk outside for everybody,” Mr. Trump told the host, Kaitlan Collins. 

When Ms. Collins asked Mr. Trump if he showed the documents to anyone, he responded, “Not really,” and, “Not that I can think of.”  That hedging is undercut by a CNN report this week that Mr. Smith has acquired an audio recording in which Mr. Trump acknowledges he held onto a classified Pentagon document about a potential attack on Iran while knowing that its classification status precluded further dissemination.

That recording reportedly captures a fragment of a large discussion that transpired at Mr. Trump’s golf course at Bedminster, ostensibly to furnish material for the autobiography of one of Mr. Trump’s former chiefs of staff, Mark Meadows. Mr. Meadows has also been a target of Mr. Smith’s scrutiny in a separate investigation relating to the events of January 6, 2021.   

In that book, “The Chief’s Chief,” Mr. Meadows references a “plan to attack Iran, deploying massive numbers of troops” authored by the chairman of the Joint Chiefs of Staff, General Mark Milley. 

CNN reports that the recording in question references that document. A subpoena was issued for that document in March, and the New York Times reports that Mr. Trump’s team has come up empty in efforts to track it down. 

If true, Mr. Smith’s team could zero in on one statute in particular, 18 U.S. Code § 793, which targets anyone who “copies, takes, makes, or obtains, or attempts to copy, take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense.” 

Violating that statute carries a maximum 10-year prison sentence, but the rub for Mr. Smith could lie in proving that Mr. Trump had the requisite intent for a jury to hold him culpable. The law requires “intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.” 

There is some debate as to whether that intent to injure America or help its adversaries applies solely to specific kinds of “information.” Mr. Smith could argue that such a document would be the kind of record whose unlawful retention the statute aims to prevent. Mr. Trump’s attorneys are likely to point out that this recording was in the service of Mr. Meadows’s book, not something nefarious.

Mr. Trump has previously floated the idea that all the records he took were declassified. “There doesn’t have to be a process, as I understand it,” he said last September. “You’re the president of the United States. You can declassify just by saying it’s declassified, even by thinking about it.”

That defense is not directly related to 18 U.S. Code § 793, which homes in not on classification but on material related to “national defense.” The Supreme Court defines that category as a “generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.”

Yet Mr. Dershowitz tells the Sun that if Mr. Trump can convince a jury — or, at a preliminary stage, a judge — that he believed the documents were declassified, that could throw a wrench into the sheetrock requirement that Mr. Trump knew that what he was doing was crosswise with the law.  

When asked how that issue was likely to come out at trial, Mr. Dershowitz ventured that “it’s a complicated question.” 

Mr. Dershowitz’s quotation has been corrected from the bulldog to reflect that Mr. Trump could aim to convince a jury that the documents were declassified in order to demonstrate he lacked the requisite criminal intent.

The New York Sun

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