Plays Well With Others

Breaking: Archives informs Trump they will hand over 16 new records to Special Counsel Jack Smith federal grand jury. My reporting with ⁦@ZcohenCNN⁩ ⁦@PaulaReidCNN⁩ ⁦@evanperez⁩ ⁦@CNN⁩ https://t.co/t7IaAXzCb9

— Jamie Gangel (@jamiegangel) May 17, 2023

That's take one; this is take two:

Note: Jack Smith wouldn't need these 16 docs to charge only obstruction. Defied a subpoena? There's your obstruction.

That's he's pursuing him is a likely sign he's testing Espionage Act charges. https://t.co/uPgBU8pFah

— emptywheel (@emptywheel) May 17, 2023

Take one thinks these documents go to intent:

The 16 presidential records, which were subpoenaed earlier this year, may provide critical evidence establishing the former president’s awareness of the declassification process, a key part of the criminal investigation into Trump’s mishandling of classified documents.

The records may also provide insight into Trump’s intent and whether he willfully disregarded what he knew to be clearly established protocols, according to a source familiar with recent testimony provided to the grand jury by former top Trump officials.

Beginning with the second paragraph first: no.  Just: no.  Criminal intent is not "you knew it was illegal and you did it anyway."  Criminal intent is that you were acting knowingly, not negligently.  "Knowingly" is then a murkier term, defined by the actions proven to the finder of fact; so I'll go no deeper than that.  Just keep in mind "knowingly" is not "he knew it was wrong." It’s much more “he knew what he was doing, and he meant to do it.”

So these documents provide material for a narrative to a jury that indicate Trump knew the regulations and defied them, whether because he thought he could or because he convinced himself he could or because he knew better but is lying now.  It's all one.  The distinction between what he knew and whether he acted with criminal intent is the question of whether criminal intent is shown, and that's a question of law.  The jury doesn't decide it, IOW; they decide whether or not he acted.  They answer the question the judge puts to them, I mean, and the way the judge frames that, whether the judge frames that at all, is a question of law: that is, is the judge satisfied the prosecution has proven criminal intent?  Proving that would take something more, and probably other, than these documents.

But they tell a story.  Juries need stories, not lectures on the arcana and history of criminal law reaching back to English common law of medieval England.

These documents help tell a clear narrative:  Trump knew better, and he ignored it for whatever reason he had, has, or will have at trial.  Remember nothing Trump says now may be evidence in the trial; or all of it may be.  The jury will be charged to decide on the evidence before it.  Nobody knows what that is, yet.

Does it matter that Trump knew how to handle and declassify documents?  It does to the jury, who could be shown he knew what he was doing, and he didn't do it anyway.  QED, EOD, that kind of thing.  Does it go to criminal intent?  Yes; and no.  It's not critical, the "smoking gun" everyone is so fond of; but it couldn't hurt.  Jack Smith could probably get a conviction without these 16 records; but why not have them so you can decide whether or not to use them?  The crucial document, the critical piece of evidence, is the one that convinces the jury to rule as you asked them to; and nobody knows what that is until the trial is over.

Could Smith be pursuing an Espionage Act case?  Very likely he is, though I'm not well-versed in that area of law or how to prosecute it or defend against it.  But again, that decision will be made on the facts available to the DOJ, and their interpretation of the Espionage Act.  By "interpretation" I mean the story they can put to the jury, based on the law and the facts they put into evidence at trial.

I will say none of this helps Trump a damned bit.

Trump and his allies have insisted that as president, Trump did not have to follow a specific process to declassify documents. At a CNN town hall last week Trump repeated the claim that simply by removing classified documents from the White House he had declassified them. “And, by the way, they become automatically declassified when I took them,” Trump said. 

Yeah, but they haven't insisted that in a court of law, because that would be like trying to restrain a bulldozer with a kleenex.  Smith's lawyers would plow right through it.  Trump can claim what he wants outside the courtroom (he still claims he didn't know E. Jean Carroll.  He never said that in court, or anything else, so it doesn't matter what he says.).  Inside the courtroom, he sits meekly before the judge, or if he can get away with it, he leaves the country.

He's very brave in court cases, is Sir Robin. 

ADDING: Of course, if you want intent both common and criminal, look no further:

3. What about Trump?

First, he just got done telling a CNN town hall he purposefully removed the documentshttps://t.co/alqXZJGO82 (via @KenDilanianNBC)

Second, key legal difference for Trump versus Pence, Biden, others is the willful retention of documents once 'discovered.'

— Ryan Goodman (@rgoodlaw) May 17, 2023

Trump just keeps on digging his own legal grave, and then jumping into it.