Merrick Garland doesn’t care about the law: Gregg Jarrett
Fox News legal analyst Gregg Jarrett and Harvard law professor emeritus Alan Dershowitz share their insight on former President Donald Trump’s indictment on ‘Hannity.’
The media’s pronouncements that Donald Trump is almost certainly guilty of crimes are based on an ignorance of the law and a blinding political bias. As is often the case with capacious fiats mouthed by the featherhead class, the opposite is true.
The former president has several viable defenses. Some will be offered in pre-trial motions challenging the 37 charges in a Florida grand jury indictment related to his handling of alleged classified documents. These motions are appealable if denied. Such interlocutory petitions and arguments are laborious and time-consuming. They render Special Counsel Jack Smith’s stated ambition of a "speedy trial" fanciful, at best.
Presidential Records Act
Trump’s principal defense rests with the Presidential Records Act (PRA). It is not "farcical" as former Attorney General William Barr claims. It was a law passed by Congress in 1978 that granted an exclusive right of former presidents to maintain custody and control of presidential papers accrued during their terms in office. Arguably, it includes classified documents.
It is a fundamental precept of law that specific statutes prevail over general statutes. The PRA is a specially crafted law that applies to a narrow group of people. That is, presidents. By contrast, the Espionage Act enacted in 1917 is a general statute that applies broadly to all citizens. Hence, the defense will argue that PRA takes precedence over the Espionage Act, which accounts for most of the charges against Trump.
It is another elementary tenet of law that if statutes are in conflict, the more recently implemented statute predominates over the earlier one. Here, the Records Act was passed 61 years after the Espionage Act. This makes it more recent, relevant and operative. Trump’s lawyers will argue that the PRA is the governing and controlling law, not the Espionage Act.
So, what does that law mean?
For more than a decade, it was the considered opinion of the Department of Justice that the PRA conferred a unique right on former presidents to keep whatever presidential records they want, and the government has no authority to seize them. The National Archives agreed. A president has the sole discretion to segregate and dispose of records.
Indeed, so convinced was the DOJ of this interpretation that its lawyers defended it in U.S. District Court in Washington, D.C., in 2012. They argued that ex-President Bill Clinton was allowed to maintain custody of whatever he wanted during his two terms, including audio tapes with suspected classified information that he stored in his home. The judge, without reservation, agreed.
District Judge Amy Berman Jackson ruled that control over presidential records rests squarely in the hands of a former president. She wrote, in relevant part, "The National Archives does not have the authority to designate materials as ‘presidential records.’ It lacks any right, duty, or means to seize control of them."
The judge also adopted the very argument made in court by the Justice Department: "(Seizing the records) is an ‘extraordinary request’ that is ‘unfounded, contrary to the Presidential Records Act’s express terms, and contrary to the traditional principles of administrative law’."
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Forty-five years ago, Congress passed the Records Act to memorialize what previous presidents had always been permitted to do as a matter of tradition and practice. This is important since it is incumbent on courts to interpret statutes consistent with legislative intent. As The Wall Street Journal noted in a recent editorial, "If the Espionage Act means Presidents can’t retain any classified documents, then the PRA is all but meaningless." Quite right.
Importantly, the PRA is a civil statute with no criminal penalty attached. Judge Jackson’s opinion reinforced the legal constraints on both the National Archives and the Justice Department. Their ability to retrieve documents is limited to a civil action, not criminal seizure. Hence, the proper remedy was for Attorney General Merrick Garland to bring a civil lawsuit to enforce his subpoena and allow an impartial judge to resolve the matter.
Selective Prosecution & A Lawless Warrant
Trump’s defense team will argue that Garland manipulated the law by commandeering the Espionage Act to criminalize conduct that is not criminal at all under the prevailing statute, the Presidential Records Act. Garland defied his department’s own legal interpretation of the law and the previous court decision to target Trump in advance of a national election. His flagrant abuse bears the unmistakable stench of partisan politics, which has infected the attorney general’s tenure from the outset.
The FBI did not raid Bill Clinton’s home to reclaim classified material. Nor did the agency raid the same home when his wife, Hillary, stored more than a hundred classified documents on her personal server as secretary of state. Notably, she did not have the protection of the Presidential Records Act. But it seems that abusive raids and inflated indictments only happen to Republicans. The new litmus test for prosecution is party affiliation, not fidelity to the law.
Trump’s defense team will aver that unequal application of the law and selective prosecution are a violation of their client’s due process rights. These rights are based on principles of fundamental fairness guaranteed by the Fifth and Fourteenth Amendments. This will likely be the subject of another pre-trial motion to dismiss the case. After all, "Equal Justice Under Law" should be more than mere words chiseled on the pediment of the U.S. Supreme Court.
A similar motion based on constitutional violations may argue that Garland snookered a Florida magistrate into signing an overly broad general search warrant that is strictly prohibited by the Fourth Amendment. If the evidence seized was accomplished by unlawful means, it constitutes an unreasonable search and seizure. The evidence would be inadmissible under the well-established exclusionary rule.
Attorney-Client Privilege
You can be assured that Trump’s defense team will seek to exclude or suppress the testimony of his lawyer, Evan Corcoran, who was forced to testify before the Washington grand jury prior to the indictment. District Court Judge Beryl Howell ruled that the attorney-client privilege could be pierced under the so-called "crime-fraud exception."
Trump’s current attorneys will contend that the ruling was deeply flawed and erroneous. Regardless, it is not binding on the trial court in Florida. Moreover, the special counsel and Judge Howell refused to allow the defense to even examine the sealed evidence on which the matter was being argued. That deprived them of presenting a fair counter-argument, which was the prosecution’s intent all along. The adverse decision was preordained.
At issue are instances in which Trump supposedly asked his counsel about ways to avoid producing evidence that Garland was seeking. But it has never been a crime for a client to ask his attorney questions — even questions about how to evade government intrusions and demands. As George Washington University law professor and Fox News contributor Jonathan Turley has pointed out, "Clients do it all the time…indeed, it’s encouraged."
We don’t prosecute people for their thoughts or discussions. Was it unreasonable or somehow criminal for Trump to ask his lawyer if he could adopt the same obstructive tactics that Hillary Clinton and her lawyer employed to escape charges? Not at all. It’s the kind of query that attorneys field quite frequently and then disabuse.
Trump’s team will protest that criminalizing confidential conversations protected by law is an egregious overreach by Smith. Howell’s conclusions and her ruling itself are an alarming breach of a cherished principle that communications between a lawyer and client are sacrosanct.
It appears from the indictment that prosecutors used (or misused) Corcoran’s testimony to help build their case. If that judicial ruling was in error, then any charges that derived from Trump’s own attorney should be stricken from the case as unlawfully brought.
Obstruction of Justice
Several of the charges against Trump accuse him of obstructing the government’s efforts to retrieve the documents in dispute. In the criminal codes, obstruction requires proof that a person act "corruptly" or "act with an improper purpose." Those rather vague terms were later defined by the Supreme Court as behaving with a "wrongful, immoral, depraved, or evil" intent.
This is an extremely high standard for prosecutors to sustain. Trump’s legal team will assert that if their client sincerely believed he was entitled to the documents under the meaning of the Presidential Records Act, as well as the court’s interpretation of it in the earlier Clinton case, then he did not harbor the requisite "corrupt" intent. It is not "immoral, depraved, or evil" to want to keep what you think is yours if you are genuinely convinced of it.
Even before the raid, Trump insisted that he was acting lawfully. Can there exist a credible motive to obstruct an investigation into a lawful act? People are not motivated to impede non-crimes. If Trump prevails in his argument that his actions were lawful under the PRA, then it seems incongruous to charge him with obstruction without an underlying crime.
Jurors Access to Classified Evidence
A serious dilemma facing the special counsel is how to hold a public trial guaranteed by the Sixth Amendment when much of the evidence is contingent on classified material. Jurors have a right to examine the documents to determine whether they qualify as national defense information under the meaning of the Espionage Act. That is their duty as the triers of fact. To understand the facts and apply them to the law, jurors must literally see the evidence.
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However, 12 average citizens selected from the community do not possess the requisite security clearance to view the records that are critical to the prosecution’s burden of proof. The same applies to lawyers.
Prosecutors cannot simply tell everyone, "Trust us when we say that the seized documents qualify as prohibited material under the statute." They cannot put an FBI agent or security analyst on the witness stand who vows that the 31 documents violate the Espionage Act. That is a question of fact that resides solely in the provenance of the jury. This approach would also deprive the defense of a fair and robust cross-examination.
Failure to permit the jury to read the documents themselves might well constitute reversible error. This leaves the government with the option of declassifying the records. So, imagine a trial where the former president of the United States is accused of having classified documents that have since been declassified. It sounds absurd because it is.
There is a law called the Classified Information Procedures Act (CIPA) that outlines various procedures for handling sensitive documents in court without jeopardizing national security. But CIPA is a process, not an unblemished resolution. It is replete with risks that can lead to a case being overturned on appeal.
Unaware of Trump’s various defenses, the chronically biased media has gobbled up every word of the indictment and treated it as gospel. Already, they have convicted him in the court of public opinion. No need for a pesky trial. These are the same faux journalists who pasteurized the phony Trump-Russia collusion "dossier" as scripture. None of them are smart enough to heed the warning of Albert Einstein that the "only mistake in life is the lesson not learned."
Veteran lawyers know better. Through experience, they realize that indictments are one-sided narratives with embroidered storytelling. In prominent cases, they are often designed for public consumption and meant to agitate or inflame. There isn’t a prosecutor alive who doesn’t think his case is better than it really is. That delusion is frequently reflected in an overwrought indictment.
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Prosecutors also have a nasty habit of ignoring exculpatory material that is beneficial to the accused. They twist the law and contort the evidence in the most damning light possible. And sometimes they fail at proof. Especially when their seemingly invincible evidence is challenged by skillful lawyers armed with credible witnesses that, in the end, undermine the charges.
Of course, that is what a trial is for. But first, Special Counsel Jack Smith must survive a flurry of dismissal motions to which the mindless media remains oblivious.