Smith’s Prosecution of Trump is a Violation of Federal Law

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Source: By Don Brown, June 20, 2023

In the 48 hours since Jack Smith and his prosecutors dropped a multi-count federal indictment against President Trump, multiple grounds have surfaced warranting dismissal of the embarrassing prosecutorial sideshow in South Florida.

Already, Smith’s indictment faces multiple legal challenges.

The Presidential Records Act, the big red elephant in the room ignored by Smith, at 44 USC §2205 (3),[1] gives a former president unrestrained access to the presidential records which he declares to be his and gives his designated agents also access to such records.  Yes, the United States Archives can take control of those records, after consultation with the former President, and any disagreement on the designation of a record is to be resolved by a United States District Court in a civil proceeding, not a criminal prosecution.

But, the Presidential Records Act simply does not create an exception prohibiting the former President’s access to records marked as secret, classified, or confidential. Under the Presidential Records Act, Trump has all the access he wants to all his presidential records, even those which may have been classified.  End of story.

The Espionage Act, even if it controlled over the Presidential Records Act, which it does not, does not apply to records that have been declassified by a president, who has an absolute right to declassify any document he wants. This is Trump’s secondary argument against the “Espionage Act” charges, that he in fact declassified all documents in his possession before leaving Washington. But  Trump doesn’t even need that argument, because the Presidential Records Act (PRA) trumps the Espionage Act on the topic of classified materials. Trump can take and designate what he wants, classified or not – and give designated agents access to records – classified or not.  Plus, the notion of Trump spying for a foreign power – the heart of the purpose of the Espionage Act –  is beyond ludicrous

The illegally-convened grand jury convened in the Republican-hating District of Columbia, indicting for acts that allegedly happened in Florida, lacks legal authority under the Constitution. First, the Sixth Amendment, which guarantees the President a right to trial by jury of his peers in the district where the crime was allegedly committed.[2] The D.C. Grand Jury violates federal law, which provides that all proceedings (including the grand jury) must “be in district and division in which offense committed.”[3]  The D.C. grand jury also violates the DOJ’s own guidelines, which provide that “A case should not be presented to a grand jury in a district unless venue for the offense lies in that district.[4]  This entire action should be dismissed based on the illegal constitution of the Grand Jury being set in the District of Columbia.

The execution of the overly-broad search warrant, authorizing a vague search for “any government and/or Presidential Records created between January 20, 2017, and January 20, 2021″[5] violates the specificity provision of the 4th Amendment, that a warrant must “particularly describe the place to be searched and the persons or things to be seized.”[6]  There is nothing particular about the phrase “government records,” which could very well include non-classified records, a state birth certificate, a driver’s license, or just about anything imaginable. The overly-broad warrant in this case was a license for a witch hunt, demanding the suppression of all evidence.

And then, there’s ineffective assistance of counsel. Squealing like pigs in a feeding trough headed to the slaughterhouse, and doing their best Michael Cohen imitation, three Trump lawyers threw the time-honored, sacrosanct American protection of the attorney-client privilege in the trashcan and immediately turned state’s evidence. All this violated the President’s Sixth Amendment Rights to effective assistance of counsel and warrants yet another ground for immediate dismissal.

But all that aside, in their efforts to stop Trump, Prosecutor Smith, Attorney General Garland, and their federal minions have violated federal law, and specifically the Hatch Act. Let’s explore that in a bit more detail.

Specifically, 5 U.S. Code § 7323 -provides:

(a)Subject to the provisions of subsection (b), an employee may take an active part in political management or in political campaigns, except an employee may not—

(1)use his official authority or influence for the purpose of interfering with or affecting the result of an election;

This Provision of the United States Code prohibits a United States government agent or employee– a category applying to Jack Smith and his ostensible supervisor, Attorney General Merrick Garland – from using their “official authority or influence for the purpose of interfering with or affecting the result of an election.”

In this case, only the blind could not see that these trumped-up charges against Trump, who has already declared his intention to seek re-election and is campaigning, with the charges brought on the eve of the primary season and in the year before the election, are anything other than an effort to “influence” or interfere with next year’s presidential election.

Even if the underlying charges against Trump were legitimate, which they are not, the Hatch Act makes no exception for legitimate charges and still prohibits federal employees from using their offices to influence, interfere with, or affect the results of an election. In other words, electoral integrity trumps the whims of a prosecutor, even if the prosecutor had a legitimate case.

Smith and Garland are federal employees, and their prosecution, dropped like a dirty bomb in the middle of election season, not only after Trump declared for re-election, but after Biden, Haley, DeSantis, Hutchinson, Scott, Ramaswamy, Christie, Pence, Burgum, and Bobby Kennedy all declared their candidacies, is designed to disrupt and affect the 2024 presidential race, in a way to injure President Trump.

A day after the indictment, 81% of Republicans in a Reuters poll believed that Smith’s charges are politically motivated[7] and an ABC poll showed that 47% of all Americans believe the charges are politically motivated,  outnumbering by 10% those who do not believe the charges to be politically motivated, at 37%.[8]

Those numbers are significant. When 81% of Republicans and nearly half of all Americans believe charges are political, and even when democrats and independents are factored in, more Americans believe these charges are political than not. The nation has a serious crisis-of-confidence problem in our criminal justice system, and Smith’s indictment has thrown gasoline on a fire of public distrust of the system.

Smith’s clear political motivation underscores a key element in this provision of the Hatch Act, that this prosecution is to influence an election. The man’s wife donated to Biden and produced a film on Michelle Obama.[9]

Nothing to see here? To quote the “Big Guy” himself, “Come on, man.”

The Hatch Act doesn’t have enough teeth to punish offenders like Smith, in that penalties for violating it could mean a five-year suspension or debarment from the federal government and a $1000 fine, but no prison.[10]  But still, the law is the law, and Smith and Garland have violated the law with this prosecution.

It is not a stretch to argue that A.G. Garland and Prosecutor Smith have, through this week’s indictment, used their “official authority or influence for the purpose of interfering with or affecting the result of an election.”

They have violated the law and should be debarred from the government, and the indictment against President Trump should be immediately dismissed.

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Don Brown, a former U.S. Navy JAG officer, is the author of the book “Travesty of Justice: The Shocking Prosecution of Lieutenant Clint Lorance” and “CALL SIGN EXTORTION 17: The Shootdown of SEAL Team Six,” and the author of 15 books on the United States Military, including three national bestsellers.  He is one of four former JAG officers serving on the Lorance legal team. Lorance was pardoned by President Trump in November 2019.  Brown is also a former military prosecutor, and a former Special Assistant United States Attorney.  He can be reached at donbrownbooks@gmail.com and on Twitter @donbrownbooks.

[1] https://www.archives.gov/about/laws/presidential-records.html#2205

[2] https://constitution.congress.gov/constitution/amendment-6/

[3] https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section3232&num=0&edition=prelim

[4] https://www.justice.gov/jm/jm-9-11000-grand-jury#9-11.121

[5] https://www.washingtonexaminer.com/news/justice/read-in-full-fbi-unsealed-search-warrant-trump-mar-a-lago-raid

[6] https://constitution.congress.gov/constitution/amendment-4/

[7] https://www.reuters.com/world/us/poll-trump-holds-double-digit-lead-after-federal-indictment-reutersipsos-2023-06-12/#:~:text=The%20polling%2C%20which%20began%20on,polarization%20of%20the%20U.S.%20electorate.

[8] https://www.ipsos.com/en-us/abc-news-ipsos-trump-federal-indictment

[9] https://nypost.com/2022/11/23/trump-special-counsels-wife-worked-on-obama-film-and-donated-to-biden/

[10] https://www.law.cornell.edu/uscode/text/5/7326