The Indictment

Ciceronianus

Perhaps this should be included in the general thread regarding our tiresome (and for some of us repulsive and for others of us saintly or heroic) former president. But I thought the (latest) indictment worth a thread of its own. I leave the ultimate decision on the location of this post to the discretion of our moderators.

I post because I know many of you wonder what a lawyer of vast experience and unrivaled ability thinks of the indictment. Sadly, in my case, that experience is limited to civil matters of all sorts. I don't practice criminal law. But, it includes litigation in state and federal courts at the trial and appellate levels, and so a familiarity with pleading, briefing and trying actions, the rules regarding which aren't so dissimilar in civil and criminal practice as to render my comments entirely irrelevant.

If you haven't read the indictment, you should. It's easily obtainable on the Web, so I won't post a link to it here. In all honesty, I might screw it up if I tried to do so.

For a pleading, I think it's remarkably clear and for the most part free of legal jargon or legalese. In some respects, it's even amusing, at least to someone like me. I find the references to Trump's attorneys particularly charming. "Attorney 1" and "Attorney 2" bring to my mind Dr. Seuss' "Thing 1 and Thing 2" and some of the descriptions of their antics at the behest of their client and their results are reminiscent of the havoc wrought by the Things at the direction of The Cat in the Hat. Trump, though, is more similar to Yertle the Turtle than any other Seuss character. The photographs of the many archive boxes, in a ballroom, in a bathroom, in a storage room, some spilled onto the floor, suggest a level of disorder and the helter-skelter shifting of locations on an ad hoc basis that is comical.

The indictment is well-ordered, and logically presented. It's recitation of the evidence and allegations is persuasive. It's an impressive piece of legal writing. Although it's not an argument, it serves the purpose of an argument, and a good one, that a variety of laws have been broken. At least on its face, there's no indication that anything has been fabricated. Some of the most damning portions of the indictment relate things Trump himself and his minions have done and said.

It's very detailed, as well. I assume this is deliberate. It puts a defendant in a position where a response to each item is needed, but also serves to undermine any claim that the indictment is vague.

It strikes me that responses to the indictment being made by Trump supporters and Republicans, which seem mostly based on tu quoque arguments, conspiracy claims, general assertions of corruption, and vague allegations regarding the "dark state" just don't serve to contest the indictment. Presumably, Trumps' lawyers will do this more ably; though if their efforts are similar to those who carried the fraudulent election claims into court so ineptly, they may not.

The question remains, though. In these sad times, no matter how clearly it is shown that the law has been violated, will it matter? What is or is not lawful doesn't seem to be a concern in our politics, nor does it seem to be a concern of many of our politicians.

Paine

↪Ciceronianus

When a contingent believes that all of the evidence has been fabricated or planted, then the trial is only theater for them. No risk of suffering cognitive dissonance. This crowd must be fed regularly by those who feed upon them.

The proof will be in the pudding. The indictment is strong, but the actual presentation of the case will have to go much further.

Philosophim

The question remains, though. In these sad times, no matter how clearly it is shown that the law has been violated, will it matter? What is or is not lawful doesn't seem to be a concern in our politics, nor does it seem to be a concern of many of our politician — Ciceronianus

That is why we have the law and courts. At the end of the day, if the courts conclude guilt, the opinion of the public does not matter. America in general might complain about rulings, but we abide by them. Trump will go to jail, many people will insist they don't believe it, but he will suffer the consequences under the law if found guilty. The court of opinion is always a biased rabble of logically inconsistent feelings and emotions struggling for power. Its irrelevant in the face of a country that solidly favors and enforces the law.

Hanover

↪Ciceronianus

The double standard argument

It strikes me that responses to the indictment being made by Trump supporters and Republicans, which seem mostly based on tu quoque arguments, — Ciceronianus

The equal protection clause, or at the least the general principle underlying it, does give certain power to the tu quoque argument. The requirement is that you treat similarly situated people similarly, and it would be problematic to basic notions of fairness if it could be shown that a Democratic leaning DOJ was prosecuting only Republicans but allowing Democrats to do as they wish for similar conduct. One's political affiliation shouldn't dictate how they're treated.

I don't think there is any moral or legal equivalence between Biden's misplacement of confidential documents and Trump's intentional concealment of documents, but I can see the hypocrisy argument being advanced, considering they have little else to go on.

Ciceronianus

That is why we have the law and courts. At the end of the day, if the courts conclude guilt, the opinion of the public does not matter. America in general might complain about rulings, but we abide by them. Trump will go to jail, many people will insist they don't believe it, but he will suffer the consequences under the law if found guilty. The court of opinion is always a biased rabble of logically inconsistent feelings and emotions struggling for power. Its irrelevant in the face of a country that solidly favors and enforces the law. — Philosophim

Well, I hope you're right. But I think we face a situation where a significant portion of the populace doesn't favor the law, and believes it shouldn't be enforced, in this case as to this individual. That anyone could accept him as credible or honorable mystifies me; he seems a kind of paragon of brazen deceit and selfishness. But there are those who do.

frank

I read that if Trump is elected, he could make it go away. We shouldn't allow the president to control the DOJ. It puts one person above the law, and if things went the other way, it could allow a president to attack opponents.

Ciceronianus

↪Hanover

Yes. In addition to Biden and his family, Hillary Clinton is brought up. But selective prosecution is hard to establish, and in this case given the circumstances and the stupidly incriminating statements of the man himself and his conduct during the investigation, I don't know how any competent, self-respecting lawyer could refrain from prosecuting given the grand jury's direction.

GRWelsh

Mostly, what I hear from Republicans is the "what about Hillary?" defense which really isn't a defense. If Hillary, Biden, and Pence all mishandled classified documents each of those cases should be investigated on its own merits. How those are handled -- whether you think it is correct or incorrect -- has no bearing on the Trump case. None of that exonerates Trump. Also, there is the issue of cooperation vs. obstruction. It really hurts Trump's case if it comes out that he willfully obstructed this investigation. The phrase "self-inflicted wound" seems most appropriate. All Trump had to do was cooperate and return the documents when they were originally requested. Trump could have easily avoided this if he wasn't so sloppy, arrogant and uncooperative.

Philosophim

Well, I hope you're right. But I think we face a situation where a significant portion of the populace doesn't favor the law, and believes it shouldn't be enforced, in this case as to this individual. That anyone could accept him as credible or honorable mystifies me; he seems a kind of paragon of brazen deceit and selfishness. But there are those who do. — Ciceronianus

It is an easy mistake for good people to make, that they believe everyone else has a tendency towards trying to be a good person as well. This is not the case. People who support Trump generally know he's not a good man. They don't care. Its about self-interest. Trump gives them low taxes, and a sense of cultural superiority. If they have that, they don't care how it was obtained.

Democracy is not about creating good. Its about competing self-interests. We hash out those self-interests and if its difficult for one block to get everything it wants, generally everyone gets a little of their own self-interest and avoids extremism. But we should never attribute that people care about how they obtain their self-interest. Many wouldn't care if you murdered people they didn't particularly agree with. I feel that the Republican party understands this more than the Democratic party. Its why conspiracy theories and false narratives work. Its about selling to someone's self-interest, not their morality, intelligence, or higher human functions.

NOS4A2

“The executive power shall be vested in a President of the United States of America.”

Trump could roll a blunt with those documents for all I care. Neither the DOJ nor NARA have the power to designate documents presidential or personal records. That discretion lies solely with the executive.

The suggestion underlying all the finger-wagging is that the unelected bureaucrats at the DOJ, NARA, and overzealous prosecutors like Jack Smith, and not the duly elected president, have discretionary power over the president’s documents and what is or isn’t classified. Of course that’s just not true.

The precedent has been already set.

The Court notes at the outset that there is broad language in Armstrong I stating that the PRA accords the President “virtually complete control” over his records during his time in office. 924 F.2d at 290. In particular, the court stated that the President enjoys unconstrained authority to make decisions regarding the disposal of documents: “[a]lthough the President must notify the Archivist before disposing of records . . . neither the Archivist nor Congress has the authority to veto the President’s disposal decision.” Id., citing H.R. Rep. No. 95-1487, at 13 (1978), reprinted in 1978 U.S.C.C.A.N. at 5744. Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office, it would be difficult for this Court to conclude that Congress intended that he would have less authority to do what he pleases with what he considers to be his personal records.

https://justthenews.com/sites/default/files/2022-08/memorandum%20opinion.pdf

I’m curious how a lawyer would get around this.

Srap Tasmaner

his personal records

It's just not the case that all the documents at issue are his personal records.

NOS4A2

↪Srap Tasmaner

But he decides what are presidential or personal records. So it is the case.

Srap Tasmaner

↪Ciceronianus

I wonder what jury selection is going to look like, in Florida of all places. Jury nullification is surely a serious concern for the prosecutors.

Michael

Trump could roll a blunt with those documents for all I care. Neither the DOJ nor NARA have the power to designate documents presidential or personal records. That discretion lies solely with the executive. — NOS4A2

He’s being charged under https://www.law.cornell.edu/uscode/text/18/793 (section e) so what you say here is irrelevant.

NOS4A2

↪Michael

It’s not irrelevant if those are his personal records. He can dispose of them as he pleases, according to the constitution and precedent.

Srap Tasmaner

↪NOS4A2

Does he? It's as simple as him saying "this is mine" and all the rules about handling and disclosure are out the window? I find that implausible, but if you have a cite, I'm ready to be educated.

It was my impression that some of these documents are considered property of the United States government, hence the issue being their "retention" and the requests from the archivist being for him to "return" them. You ask someone to return a thing when they have it but it's not theirs.

Michael

It’s not irrelevant if those are his personal records. He can dispose of them as he pleases, according to the constitution and precedent. — NOS4A2

https://www.reuters.com/legal/government/donald-trump-presidential-records-act-clintons-sock-drawer-defense-2023-06-09/

Moreover, Moss said, the question of whether the documents were personal or presidential records is beside the point in a case involving the Espionage Act, like the one against Trump.

“Whether as a presidential record or a personal record, the records at issue in this indictment still have classification markings and contain information relating to the national defense,”

Ciceronianus

↪NOS4A2

It's not quite as simple as you seem to think. The Armstrong cases dealt with the application of several federal records laws, and specifically the distinction between records governed by FOIA and those addressed by the Presidential Records Act. FOIA address federal agencies; part of the executive branch. They discussed the civil remedies available to those who seek records under both laws. They're not exactly on point.

As this Memorandum Decision itself notes, however, what it refers to as Armstrong I was subsequently interpreted by the D.C. Circuit (the federal appellate court for the D.C. District Court) in what it refers to as Armstrong II. In that subsequent decision (at 1 F.3d 127) the D.C. Circuit noted that Armstrong I ""the Armstrong I court was not addressing the initial classification of existing materials." Armstrong v. Executive Office of the President, Office of Admin., 1 F.3d 1274, 1294 (D.C. Cir. 1993) In other words, Armstrong I didn't address the initial classification of materials as presidential or personal records. Presidential and Personal Records and he difference between them are defined in the PRA. That classification is not at the sole discretion of a president, but is subject to court review:

"Thus, although the PRA impliedly precludes judicial review of the President's decisions concerning the creation, management, and disposal of presidential records during his term of office, Armstrong I, 924 F.2d at 291, the courts may review guidelines outlining what is, and what is not, a "presidential record" to ensure that materials that are not subject to the PRA are not treated as presidential records. We remand to the district court to conduct this inquiry."

Armstrong v. Executive Office of the President, Office of Admin., 1 F.3d 1274, 1294 (D.C. Cir. 1993).

Regardless, though, the indictment isn't limited to the PRA or civil remedies available under it. It involves violation of the Espionage Act, obstruction, and other criminal matters.

Srap Tasmaner

↪Michael

And if I understand correctly, the Espionage Act predates our modern system of classification, and so applies even to unclassified documents if they contain sensitive material related to national security. Classification would function here primarily as an indicator that a document contains such material, but classification per se is not necessary. There are documents you would be prohibited from sharing even if they had been declassified. Is that your understanding?

Michael

There are documents you would be prohibited from sharing even if they had been declassified. Is that your understanding? — Srap Tasmaner

Yes, I believe so. Classification levels are an additional restriction, beyond what else might be restricted by law, and aren't a replacement.

So something can be unclassified but still illegal to retain/share, e.g. issues related to national defence or atomic energy.

Srap Tasmaner

I'm pretty sure I remember an interview in which Hodding Carter suggested that classification is often abused. I think the example he gave was the Carter administration withdrawing support from maybe El Salvador (?) but not until they had secured a deal with Israel to fill the gap. And that deal was classified, not because America would be at risk were the details known, but because it would be embarrassing to the administration which was claiming to have a foreign policy focused on human rights. Carter suggested that every administration he was familiar with had classified documents they would merely be embarrassed to have made public.

That said, Jack Smith and his team included enough detail in the indictment to make it clear that there was genuinely sensitive information involved here, that this was not just a sort of "legal technicality" -- something like, sure these documents were pointlessly classified (by your own administration) and don't contain anything genuinely secret, but we don't like you so we're prosecuting you anyway. Not the situation, as far as we can tell.

NOS4A2

↪Ciceronianus

Thanks for the low down, but I was citing Judicial Watch vs. NARA, which observes other cases besides Armstrong.

creativesoul

↪NOS4A2

...during his time in office...

Key words above...

The case against him is not regarding his time in office. It's about the records he stole, hid, and lied about possessing after leaving office. He did not declassify the records prior to leaving. The records he possessed after leaving office were not declassified. He knows that. His advisors know that. That's why he came up with a few hairbrained notions about how he could declassify records(without following the regular process).

NOS4A2

↪Michael

I’m fairly certain that the president’s authority can override whoever marks documents as classified, unless executive authority is invested in the Dept. of Justice or someone else I am unaware of.

180 Proof

The case against him is not regarding his time in office. It's about the records he stole, hid, and lied about possessing after leaving office. — creativesoul

Regardless, though, the indictment isn't limited to the PRA or civil remedies available under it. It involves violation of the Espionage Act, obstruction, and other criminal matters. — Ciceronianus

https://thephilosophyforum.com/discussion/comment/814765

creativesoul

I’m fairly certain that the president’s authority can override whoever marks documents as classified, unless executive authority is invested in the Dept. of Justice or someone else I am unaware of. — NOS4A2

Trump was not president. Biden was.

NOS4A2

↪creativesoul

Do you really think Trump walked into the white house and took documents?

creativesoul

↪NOS4A2

Arguing with your own database now?

Srap Tasmaner

↪NOS4A2

I don't believe he was indicted for stealing documents, but for retaining them, hiding them, and lying about having them.

Metaphysician Undercover

Do you really think Trump walked into the white house and took documents? — NOS4A2

Isn't that exactly what he did? If not, how would you describe what he did?

NOS4A2

↪Srap Tasmaner

I don't believe he was indicted for stealing documents, but for retaining them, hiding them, and lying about having them.

I’m fairly certain the argument for the defense will be that he has the right to keep them for the same reason he had the right to take them. He was the president. They are his documents. As the top authority on what is or is not classified, what is or is not his documents, nothing can be said that they are not his.

The Indictment

Welcome to The Philosophy Forum!

Categories