Former President Donald Trump has been charged with a variety of crimes, including violation of the misnamed Espionage Act. That 1917 statute is misnamed because it covers a great many offenses that don’t involve spying or giving secrets to the enemy.
I doubt the judge will prohibit the word espionage. So if I’m the defense I would on cross examination have a govt witness read the dictionary definition of “espionage” and with every prosecution witness I could I would ask every--“ok, so when was it Trump gave or sold classified material to any adversary or terrorist group and how much was he paid? Also, exactly what classified material did Trump share--specifically what language from the documents?” My response to prosecution m’s witness answer is “What, he didn’t sell or give any documents or classified material of any sort at issue here to any adversary, enemy or terrorist group--then why is he charged with Espionage?” What harm did he cause to American or allies safety of its country or people or any field agent assets? “Wait what, you can’t tell me of any harm that resulted. I would do that over and over and cross every witness who reviewed the material or anyone and everyone that the judge would allow. FINALY, the government would be explaining that they are not charging him with committing espionage by selling or giving secrets to a foreign adversary or actually hurting the security of the US or it’s Allies. It would be more powerful to the jury, if the government itself is the one that has to say, “we don’t mean ‘espionage’ in the normal sense, or dictionary definition or common layperson language, what we really means is that he possesses classified documents, the “Espionage” stuff is how Congress named the Law. In response I would some way work in that the title Congress gives to a law is not actually part of the law itself. The name can be made up and that the title can be misleading or even a lie--just like Biden admin naming a spending bill The Inflation Reduction Act and if necessary have an expert to testify that the law made inflation worse and that hundreds of economists said this before the law was passed. I would call the Parlimentarian and clerk of both houses to be witnesses to explain the title of a law is not part of the law itself--you must look at the elements of the conduct the law dictates as criminal. Try to force the Prosecution to have to explain that he didn’t give secrets to an enemy or hurt US security so that the dictionary definition of “espionage” is not even being alleged. I would ask every witness I could. “So are you charging him with merely possessing classified material? They would say yes and they would say obstruction. I would say, I will addressed the supposed “obstruction” and use finger quotes. Then ask “Have there been other Presidents, Senators, Vice Presidents, or Secretaries of State between 2016 and 2023 who have been found to be in possession of classified material improperly.” (That will be objected to so I might not get the answer)“ Tell me what the length of their sentence was? What, they weren’t sentenced, what they weren’t even charged...of anything?” “How can that be?” The prosecution will be objecting to a lot of those questions perhaps, but the jury will still understand what is going on. When they argue obstruction of Justice. I have a bunch of cross X for that. But in closing I would say, “academically in theory it is possible to find obstruction of Justice, even when there is no underlying bad act or crime.” That is what they argued in Trumps two impeachments, yet he was found not guilty--even when Democrats had the majority in the sentence. Make the prosecution explain the 2/3 rule if they want. I would also ask the jury if they think someone should be convicted of obstructing Justice for a “crime” that they did not charge anyone else for when they had same documents in their possession after leaving office. If that is not “enough evidence blah blah-quote Comey--that no REASONABLE prosecutor would every charge anyone with” what was it in the law that changed since that statement? Nothing, not one word of the law has been changed.” Plus I would argue that Trump had been in discussions with Archives about what he had to return and what he could keep. By the way that was only a civil matter, until FBI conducted a late night raid on his home with a search warrant and suddenly now they are accessing you of a crime. When a search warrant is served, you still have 5th Amendment rights, and you are under no obligation to show the police something they missed. The government made this adversarial, not Trump. The FBI had previously checked if his papers were secure. They told him to add an extra lock. Why didn’t they search then? The FBI executed a search warrant with guns drawn and searched high and low. For some reason they did not take all the documents marked classified. The defendant doesn’t have to guess why they didn’t take them. So the fact that he allegedly moved documents doesn’t matter. Defendant does not have an obligation to take all files FBI missed to the FBI and ask them to “look at these documents I had, should you have taken those?” The fact that you moved around storage boxes after a search is not a crime. Lawyer did sign document that he swore everything he knew about was in Govt hands. Oops. He made a mistake, he didn’t lie.” Even the FBI missed them when conducting a surprise search. Ladies and Gentlemen of the jury, moving some boxes around after the FBI is satisfied with their search is not a crime. Tell the jury that this rightly should be worked out with the Archives, which is civil, which is where this matter originally was. Leave the jury with “you duty is to find the facts that are true and use your judgment and apply the law to those facts and determine in your judgment if there really a crime, beyond all reasonable doubt. You use your common sense and judgment and make your determination if defendant committed “espionage” and if it isn’t, look at what is left and whether if there really is a crime. It is up to you bc the FBI and DOJ can’t seem to determine when it is a crime or not for themselves in any consistent manner.
From here, (Australia), it seems America has devolved into mass insanity. Trump /Espionage. How moronic, yet evil.
I much admire Professor Dershowitz, but keep remembering him saying on his podcast early in the Biden Admin., that he though Merrick Garland would be a good Attorney General, & would have been a good Supreme Court appointment. I haven't heard him regret those words. So if the greatest mind in the US can be so wrong, what hope is there for that once great country?
The "national security documents" are two letters left or sent to Trump, one by Obama, his opponent in the 2016 election. NARA and DOJ intentionally demanded personal letters back, knowing Trump would resist. NARA literally loaded Trump's Presidential documents onto the trucks outside the White House to take to Mar-a-Lago. NARA intentionally did not rent a warehouse near Mar a Lago in order to ensure they were not responsible for security but Trump was, which made the FBI raid and photo staging, possible. The entire thing is a pretextual setup to try to stop Trump's re-election through Lawfare.
My understanding is that the appropriate statute for charging him on keeping subpoenaed records from NARA is the Presidential Records Act, which requires that all Presidential (not personal) records be returned within 5 years of leaving office). Please correct if wrong.
Along the same lines, I heard two attorneys say tonight on TV that consolidation of the GA case and the J6 case and calling them insurrection and sedition conspiracy would make things easier and my jaw dropped. Charging POTUS with crimes for what which hechas has exculpatory evidence for, so we only have to follow 3 indictments, not 4? I’m glad these attorneys are otherwise occupied.
If it's common for judges to prohibit prosecutors from using prejudicial terms like espionage in front of the jury, can they do so independently, or only if the defense asks for that ruling? The judge in this case is said to be very fair, so I am confident it will be prohibited at some point..
I agree with you on this matter. But I am not sure you have heard the rumor that their are some other charges being held back and if the Judge in Miami makes wind they will bring out the charges and move the venue to NJ. I have heard one of the charges is Treason. Which you so greatly detailed in your latest comment. Loose lips sink ships is what we have going on here.
I doubt the judge will prohibit the word espionage. So if I’m the defense I would on cross examination have a govt witness read the dictionary definition of “espionage” and with every prosecution witness I could I would ask every--“ok, so when was it Trump gave or sold classified material to any adversary or terrorist group and how much was he paid? Also, exactly what classified material did Trump share--specifically what language from the documents?” My response to prosecution m’s witness answer is “What, he didn’t sell or give any documents or classified material of any sort at issue here to any adversary, enemy or terrorist group--then why is he charged with Espionage?” What harm did he cause to American or allies safety of its country or people or any field agent assets? “Wait what, you can’t tell me of any harm that resulted. I would do that over and over and cross every witness who reviewed the material or anyone and everyone that the judge would allow. FINALY, the government would be explaining that they are not charging him with committing espionage by selling or giving secrets to a foreign adversary or actually hurting the security of the US or it’s Allies. It would be more powerful to the jury, if the government itself is the one that has to say, “we don’t mean ‘espionage’ in the normal sense, or dictionary definition or common layperson language, what we really means is that he possesses classified documents, the “Espionage” stuff is how Congress named the Law. In response I would some way work in that the title Congress gives to a law is not actually part of the law itself. The name can be made up and that the title can be misleading or even a lie--just like Biden admin naming a spending bill The Inflation Reduction Act and if necessary have an expert to testify that the law made inflation worse and that hundreds of economists said this before the law was passed. I would call the Parlimentarian and clerk of both houses to be witnesses to explain the title of a law is not part of the law itself--you must look at the elements of the conduct the law dictates as criminal. Try to force the Prosecution to have to explain that he didn’t give secrets to an enemy or hurt US security so that the dictionary definition of “espionage” is not even being alleged. I would ask every witness I could. “So are you charging him with merely possessing classified material? They would say yes and they would say obstruction. I would say, I will addressed the supposed “obstruction” and use finger quotes. Then ask “Have there been other Presidents, Senators, Vice Presidents, or Secretaries of State between 2016 and 2023 who have been found to be in possession of classified material improperly.” (That will be objected to so I might not get the answer)“ Tell me what the length of their sentence was? What, they weren’t sentenced, what they weren’t even charged...of anything?” “How can that be?” The prosecution will be objecting to a lot of those questions perhaps, but the jury will still understand what is going on. When they argue obstruction of Justice. I have a bunch of cross X for that. But in closing I would say, “academically in theory it is possible to find obstruction of Justice, even when there is no underlying bad act or crime.” That is what they argued in Trumps two impeachments, yet he was found not guilty--even when Democrats had the majority in the sentence. Make the prosecution explain the 2/3 rule if they want. I would also ask the jury if they think someone should be convicted of obstructing Justice for a “crime” that they did not charge anyone else for when they had same documents in their possession after leaving office. If that is not “enough evidence blah blah-quote Comey--that no REASONABLE prosecutor would every charge anyone with” what was it in the law that changed since that statement? Nothing, not one word of the law has been changed.” Plus I would argue that Trump had been in discussions with Archives about what he had to return and what he could keep. By the way that was only a civil matter, until FBI conducted a late night raid on his home with a search warrant and suddenly now they are accessing you of a crime. When a search warrant is served, you still have 5th Amendment rights, and you are under no obligation to show the police something they missed. The government made this adversarial, not Trump. The FBI had previously checked if his papers were secure. They told him to add an extra lock. Why didn’t they search then? The FBI executed a search warrant with guns drawn and searched high and low. For some reason they did not take all the documents marked classified. The defendant doesn’t have to guess why they didn’t take them. So the fact that he allegedly moved documents doesn’t matter. Defendant does not have an obligation to take all files FBI missed to the FBI and ask them to “look at these documents I had, should you have taken those?” The fact that you moved around storage boxes after a search is not a crime. Lawyer did sign document that he swore everything he knew about was in Govt hands. Oops. He made a mistake, he didn’t lie.” Even the FBI missed them when conducting a surprise search. Ladies and Gentlemen of the jury, moving some boxes around after the FBI is satisfied with their search is not a crime. Tell the jury that this rightly should be worked out with the Archives, which is civil, which is where this matter originally was. Leave the jury with “you duty is to find the facts that are true and use your judgment and apply the law to those facts and determine in your judgment if there really a crime, beyond all reasonable doubt. You use your common sense and judgment and make your determination if defendant committed “espionage” and if it isn’t, look at what is left and whether if there really is a crime. It is up to you bc the FBI and DOJ can’t seem to determine when it is a crime or not for themselves in any consistent manner.
From here, (Australia), it seems America has devolved into mass insanity. Trump /Espionage. How moronic, yet evil.
I much admire Professor Dershowitz, but keep remembering him saying on his podcast early in the Biden Admin., that he though Merrick Garland would be a good Attorney General, & would have been a good Supreme Court appointment. I haven't heard him regret those words. So if the greatest mind in the US can be so wrong, what hope is there for that once great country?
Thank you, Professor, for your balanced coverage of these legal issues.
The "national security documents" are two letters left or sent to Trump, one by Obama, his opponent in the 2016 election. NARA and DOJ intentionally demanded personal letters back, knowing Trump would resist. NARA literally loaded Trump's Presidential documents onto the trucks outside the White House to take to Mar-a-Lago. NARA intentionally did not rent a warehouse near Mar a Lago in order to ensure they were not responsible for security but Trump was, which made the FBI raid and photo staging, possible. The entire thing is a pretextual setup to try to stop Trump's re-election through Lawfare.
In an age of rage, espionage is the government's favorite act.
My understanding is that the appropriate statute for charging him on keeping subpoenaed records from NARA is the Presidential Records Act, which requires that all Presidential (not personal) records be returned within 5 years of leaving office). Please correct if wrong.
Along the same lines, I heard two attorneys say tonight on TV that consolidation of the GA case and the J6 case and calling them insurrection and sedition conspiracy would make things easier and my jaw dropped. Charging POTUS with crimes for what which hechas has exculpatory evidence for, so we only have to follow 3 indictments, not 4? I’m glad these attorneys are otherwise occupied.
Do you mind explaining the grounds used to terminate your synagogue membership?
If it's common for judges to prohibit prosecutors from using prejudicial terms like espionage in front of the jury, can they do so independently, or only if the defense asks for that ruling? The judge in this case is said to be very fair, so I am confident it will be prohibited at some point..
I agree with you on this matter. But I am not sure you have heard the rumor that their are some other charges being held back and if the Judge in Miami makes wind they will bring out the charges and move the venue to NJ. I have heard one of the charges is Treason. Which you so greatly detailed in your latest comment. Loose lips sink ships is what we have going on here.