My one experience in Federal Court as a lawyer (stop me if you've heard this one. I.e., you probably have. I'm not trying to be an old man reliving his long-past glories; but suddenly it's relevant again), was over the legal issue of "possession."
White collar cases, like fraud and obstruction, turn on the defendant's mental state.— Renato Mariotti (@renato_mariotti) August 31, 2022
The facts and circumstances here make this more like a drug case. Are his fingerprints on the docs? Are they mixed in with his stuff? If he possessed them, he's guilty. https://t.co/Q2fNin5adP
The only viable defense Trump has is to point the finger at someone else — to claim that he is a hands-off administrator who took the word of his aides that none of the documents at Mar-a-Lago belonged in the government’s hands. But while two of the statutes at issue require the government to prove that the defendant intended to break the law, the DOJ’s repeated requests and demands to Trump — including a grand jury subpoena — will make it hard for him to argue that he did not realize that the records contained national security secrets that belonged to the federal government.Trump’s defense would have to be that he did not read any of the communications from the government and was told by his attorneys that their meeting and communications with the DOJ indicated that he was in the clear. He would have to claim that the attorneys lied to him and that he never directed one of the attorneys, Christina Bobb, to sign an apparently false statement to DOJ that all of the materials “marked classified” had been returned to the government.
I don't think that defense is viable anymore. Not with all those files with their cover sheets, found in Trump's office alone. And that's why the framed magazine cover matters. No doubt agents involved in the search can testify the files on the floor for that photo, came from the box with that framed cover in it. Trump had possession; and he knew it.
Again, the view from two days ago:
It looks like the Justice Department has the goods on Trump. Typically, a criminal defense attorney would be trying to work out a deal in this situation. That may be the best move Trump has left, even if he isn’t inclined to go that route.
Oh, please, Donald, please: throw us all in that briar patch. Refuse to take a deal and make this go to trial. The popcorn manufacturers of America will thank you!