An alternate take on the indictment

William Jacobson from Legal Insurrection has a pretty good track record and obviously has done the most homework on this whole thing...

“This is an indictment that comes across as a very public relations-oriented document”

My takes on the Trump indictment: “They knew there would be fury from Team Trump, from Trump himself, from Trump supporters. So they felt they needed to put more in there, but I’m not sure they’ve put enough in there to actually prove their case as opposed to getting past the hurdle of sustaining an indictment.”

The conventional wisdom from the go to people I generally trust (Turley, McCarthy, etc...) is that this is a serious indictment that might just be such a slam dunk that Jack Smith didn't even bother to try to get the case moved from Florida to D.C. But Jacobson suggests that he has read the entire indictment (49 pages) multiple times and that some of it appears vague or otherwise more implicating that substantial. Jacobson even leaves open the possibility of the indictment being misleading for political reasons. He suggests for instance the Smith talks about boxes being moved, but doesn't necessarily suggest that the moving boxes contained classified documents. Rather there is the larger issue of having Presidential records (that are not classified) in these same boxes. Can Smith prove that the boxes being moved included anything classified. Can Smith show that they were moved to conceal rather than they were just moved? Moving boxes might be suspicious, but it really proves nothing.

The indictment leaves many similar questions unanswered.

Like me, Jacobson questions the manner in which Smith writes about the war plans issue and there may be questions about what he literally showed people, rather than what was just referenced. How close were they when he talked about these documents. Again, is there more implication than actual proof?

Much like the whole Mueller investigation report, there is a lot of reference to things that Trump stated or inquired about that never appears to have been actually done. Asking an attorney an opinion about what to do with a document is not really the same thing as doing it. In other words, if you ask an attorney if you should destroy a document before you do, and then on advice of the attorney you decide not to, well that is not obstruction. It is an interest in something that might be obstruction if it was followed through with. There seems to be a great deal of things Trump thought about, but never did in every investigation that comes up surrounding him. At least according to investigators. Trump committed lots of thought crimes that were never real crimes.

The underlying vibe here is that Jacobson believes there is more sizzle than steak and written to make people believe things might be more serious than they really are. Similarly Turley reminds people that an indictment is never more damning than when it is first revealed an nobody has had a chance to question any of it. McCarthy still seems convinced of Trump's guilt and continues to write daily about it. But where McCarthy errs has always been on the side of the prosecution (as someone who was a prosecutor himself).

Lastly, (and this is my personal opinion) the fact remains that this is a very unique situation and it cannot be treated like a normal situation. Everyone has to remember that Trump having these exact same documents at Mar-a-Lago a few months prior (when he was still President) would not have been a violation of any law. Smith appears to be treating Trump like he was just a normal citizen who gathered classified information. The reason why having this information is generally a crime under the espionage act is because nobody is ever really allowed to have them. The simple act of gathering them is illegal. But this applied to everyone "except" the President of the United States. The commander in chief is the only person who is actually allowed to "gather" these documents into his possession and keep them for his or her reference.

So Trump gathered these documents while it was perfectly legal for him to do so. He was entitled to see them and entitled to keep them as President. Every President leaves office knowing most all of our national security information. We cannot bleach bit a person's brain when they leave office. Do any of these documents contain information that Trump was not allowed to know? Of course not, he would not have had them had he not been entitled to see them. It seems like parcing logic to suggest that a former President was gathering information illegally when it was all legally given to him. It also seems almost a semantic argument that it is illegal to have documents that only reinforce what you already know and cannot unknow.

So this is one of these crazy timing deals. Last Tuesday, these actions were perfectly legal, but on Wednesday we will now charge you under the espionage act. Boy doesn't that seems rather arbitrary?

It also begs the Comey Clinton question. Did Donald Trump keep the documents because he intended to harm the United States? According to that precedent, the intention of harm is crucial in proving a crime. I see nothing in the indictment that really suggests there was intent to sell secrets or otherwise undermine our national security interests to any foreign adversary. It sounds more like Trump being Trump. Trump was being obstinate while getting into a pissing match with NARA and other authorities. Trump was stroking his own ego by bragging about what he knew as the former President. Trump's ego and somewhat childish personality seems to rub a lot of these deep state folks the wrong way. But does that really make him a criminal?