Wednesday, August 31, 2022


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."

I mention it because it might clarify things a bit here.  My client was a convicted felon; as such, under federal law, he couldn't be "in possession" of a firearm.  He was stopped for a busted taillight (if memory serves) and a shotgun was lying in the package tray (this as decades ago. we all drove sedans back then).  It wasn't his, he said.  Didn't matter.  Driving the car with that gun in it put him in "possession, custody, and control" of the firearm.  Back to jail he went.  The "trial" took all of about 5 minutes.

Obviously the trial of Trump, if it comes to that, would take a bit longer (we didn't have a jury, for one thing.  We didn't have a legal argument, for another.).  But the issue of possession is as simple as that.  Trump had possession, custody, and control of those documents (IIRC, that was the language of the statute on firearms; can't say it's the language of the relevant statute here.  But then again, I don't know what the case law is on that statute.  The plain language of the law is not the only consideration here, so this is hardly a legal memo.).  Mixing them in with his stuff indicates an intent to keep them.  That's important especially in the face of so many legal demands that they be returned to the government agencies responsible for them.  (This is where the difference between NARA, responsible for enforcing the PRA, and the DOJ, responsible for enforcing national security laws, come into play.  Alina Habba wants to say this is all about the PRA, which is a trap in another way.  If it is all about the PRA, then the court in Florida has no jurisdiction.  Under the PRA, cases challenging NARA decisions can only be filed in D.C.  No, PRA doesn't have any criminal provisions; but the search warrant wasn't issued because of possible violations of the PRA.  Trump's lawyers really aren't good at this at all.)  Possession is a fairly straightforward matter:  you either have it, or your don't.  Intent doesn't enter into the question.

Did my client intend to use that shotgun, for hunting or a crime? Didn't matter.  He was in possession of it, illegally; that's all that matters.  Trump's possession of the documents, especially after the subpoena, is a clear sign of intent; which intent might be important to an obstruction of justice charge (violating a subpoena and lawful demands to return government property from authorized government agents).

And then there is the question of what he wanted to do with them.  Sell them?  Most likely, actually.  Everything is transactional for Trump.  I don't know what evidence the FBI has on that issue.  But the possession issue?  He had them.  He shouldn't have.  EOD.

Mariotti's Politico column was published Monday.  Today we have the famous picture of files found in Trump's office; of files found in the drawers of Trump's desk; of files found with his TIME Magazine memento.

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! 

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