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As noted by Chief Justice John Roberts in his landmark July 1, 2024 immunity decision in Trump v. U.S., a former president of the United States had never been indicted by the United States prior to Jack Smith’s filing charges against President Trump.  The case of USA v. Trump was, ipso facto, a perverse joke.  It was a diabolical move to change America.  Nonetheless, the federal court system, up to and including the Supreme Court, had to take it seriously.  That is why the nefarious forces behind Jack Smith saw to it that the grossly politicized District Court for the District of Columbia should serve as the base of operations for this leftist commando raid on the rule of law.

For Trump. the court system by 2023 had by default become the last refuge in a crisis that had burst through the traditionally defined and universally understood boundaries of Article I, Article II, and Article III of the U.S. Constitution.  There were eight issues that had to be examined in order to sift through the miasma of Democrat party lawfare.  What is unique is the fact that any one of these eight issues offered an independent basis for determining the outcome of USA v. Trump.  The eight issues can be analyzed as follows.

I. EXECUTIVE PRIVILEGE

In Judge Aileen Cannon’s September 5, 2022 decision in the Trump Mar-a-Lago search warrant case, Judge Cannon cited SCOTUS’s decision in Trump v. Thompson (See Part III), citing 142 S.Ct. 680, 688 (2022).  SCOTUS’s July 1, 2024 immunity decision verified Judge Cannon’s suspicion that Trump has at least some level of presidential immunity protecting his conduct that Joe Biden could not waive.

II. THE PRESIDENTIAL RECORDS ACT

In Armstrong v. Executive Office of the President, 1 F. 3d 1274, 1291 (1993), the term “federal records” was defined in federal cases as “agency records.”  Unless Jack Smith could prove that Trump had in his possession identifiable records taken from federal agencies, they should be deemed to be “presidential records.”  If they were agency records, the Archivist would then follow Federal Records Act procedures.  If Armstrong applied to Trump’s actions, Jack Smith’s case should have ended right there.  The actions of the Archivist in making a criminal referral against Trump will in all likelihood be reviewed in future investigations.

III. THE “CLINTON SOCK DRAWER” CASE

In Judicial Watch, Inc. v. National Archives and Records Administration, 845 F.Supp.2d 288 (D.D.C.2012), the Court held that plaintiff’s injury was not redressable because the National Archives had no authority or means to obtain the records from the president at all.  Judge Amy Berman Jackson held that under the Presidential Records Act, courts had no statutory means to “second-guess” a former president’s handling of his presidential records.

Obviously, the aforementioned decision applied to Trump’s actions.  The Jack Smith filing should have ended right then and there, but Democrats and left-leaning judges chose to ignore the “Clinton Sock Drawer” case.

IV. OBAMA’S EXECUTIVE ORDER

Executive Order 13526 was issued on December 29, 2009 by President Barack Obama.  It is one of a series of executive orders from U.S. presidents outlining how classified information should be handled.  In Judicial Watch, Inc. v. US Dept. of Defense, 715 F. 3d 937, 941, D.C. Circuit 2013, the appellate court held that Executive Order 15326 covers “all substantive and procedural criteria for classification.”  Section 4.1(a)(3) says that access to classified records may be granted to persons with a right to know.  Section 4.4 of the E.O. states that the “right to know” application is waived for a former president or vice president.

Pursuant to Executive Order 13526, Trump was an “authorized holder of classified documents” as per Section 6.1(c), which cross-references Sections 4.1(a)(3) and 4.4(a)(3).

In addition, Section 3.2(d) of Executive Order 13526 states that the National Archives had no right to demand “accessioning” of classified documents transferred pursuant to the Presidential Records Act, 44 USC Section 2203.  Once Trump had declassified documents, NARA could not “reclassify” those documents after they had been transferred to Mar-a-Lago.  At that point, Trump became the “originator” of the documents.  If any federal court had decided that Executive Order 13526 applied to Trump’s actions, then Jack Smith’s garbage filing should have ended right there.  No attention was given to the Obama executive order, because it did not fit the lawfare narrative.

V. DOJ’s OFFICE OF LEGAL COUNSEL MEMORANDUM

The OLC’s Memorandum of March 24, 2019 was written by the Justice Department after Robert Mueller had issued his report on Trump Russia Collusion.  Volume II of the Mueller Report left open the possibility of prosecuting Trump on an obstruction charge.  However, Attorney General Barr subsequently signed off on the Office of Legal Counsel opinion, which concluded that an obstruction charge would not be appropriate.  Legal commentators have raised the issue of whether Biden’s attorney general decided not to follow the 2019 OLC opinion when a decision was made to indict Trump.  Presumably, this is an important issue that may in fact be raised in future investigations.

VI. ESPIONAGE ACT

The Espionage Act charge filed against Trump allegedly arose under 18 USC §793 — Gathering, transmitting or losing defense information.  Subsection (f) refers to “gross negligence.”  It is difficult to discern how Trump could be “grossly negligent” if his lawyers had advised him of any of the eight issues examined in this article.  Jack Smith’s Espionage Act charge had no basis in legal precedent whatsoever.  This will most likely be at the center of future investigations.

VII. OBSTRUCTION OF JUSTICE

The pertinent “obstruction” statute is 18 USC Section 1512.  An issue arose as to whether, under the OLC’s memorandum of March 24, 2019, a Presidential Records Act could in fact be an “official proceeding,” due to the fact that no criminal enforcement measures are contained in the PRA.  Trump had an affirmative defense (burden shifts to prosecution) that his actions were at all times intended to carry out a lawful purpose.  Making Jack Smith’s position even more ludicrous was SCOTUS’s decision of June 28, 2024, in Fischer v. U.S.  The Fischer decision was additional proof that Jack Smith’s lawfare filings were based on a left-wing political fever dream rather than upon legal precedents.

VIII. CRIME FRAUD EXCEPTION TO ATTORNEY CLIENT PRIVILEGE

U.S. v. Zolin, 491 U.S. 554 (SCOTUS 1989) established the parameters of “the crime fraud exception.”  The Zolin Court said an in camera examination by a judge is important to help the court to discern what, for example, would have been the actual “crime” that Trump specifically hired Evan Corcoran to aid him with. Obama-appointed judge Beryl Howell ordered Trump lawyer Corcoran to testify before Jack Smith’s grand jury.  It is highly likely that future investigations will delve into whether Judge Howell willfully chose not to adhere to the Zolin case.  

In conclusion, it is abundantly clear that Jack Smith’s outrageous lawfare cases against Trump will not be ignored by the incoming Trump administration.  There will indeed be some serious DOJ scrutiny of Smith’s actions.

<p><em>Image: Gage Skidmore via <a href=Flickr, CC BY-SA 2.0.

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Image: Gage Skidmore via Flickr, CC BY-SA 2.0.