My purpose here is to put forward propositions in the form of theses related to the Trump indictment that I believe to be true and worthy of note. At the least, I hope they may spur serious thought and analysis.
• The indictment is an incredibly destructive act. Krazee-Eyez Killa Jack Smith is the wrong man to stand behind it. His selection as Special Counsel was uncalled for by any law or regulation. His status as Special Counsel is stage management to avoid the appearance of American justice going third-world. His invocation of equal treatment under law in his minimalist statement announcing the indictment is a bad joke.
• The indictment, by the way, is posted online here. Taking the allegations of fact as true, I have a hard time avoiding the impression that President Trump all but invited it. He is a reckless man.
• Trump attacked the indictment in remarks on Saturday at Georgia’s state Republican convention in Columbus (transcript here). He tacitly disparaged the Espionage Act of 1917. Thirty-seven of the counts in the indictment charge him with violation of one section of the act, 18 U.S.C. § 793(e). I have written a lot about the law and supported its enforcement against Deep State actors and their media co-coconspirators. Jewish World Review has posted a serious column by Professor Stephen Carter analyzing section 793(e) and its possible application in Trump’s case.
• Those of us concerned about the two-tiered system of justice also have to reckon with the many lesser luminaries prosecuted under the act. Jack Texeira is only the most recent example. His indictment was announced yesterday. The Department of Justice press release announcing Texeira’s indictment is posted here.
• Trump cites the Presidential Records Act in support of his possession of the 31 documents in issue. Several pundits second him in this argument and cited the Clinton case — not Madam Hillary’s crime spree but rather the Bill Clinton “sock drawer” case. Several commenters have seconded this argument. Perhaps most prominently among them is the lawyer who lost the case — Michael Bekesha in this Wall Street Journal column earlier this week.
• The PRA argument is a loser. Under 44 U.S. Code § 2201, the act’s definitional provision, the documents in issue are not presidential records. They are agency records. Agency records are not presidential records. See, for example, Andrew McCarthy’s NRO column “Frivolous argument No. 1” and “Where Judicial Watch’s Defense of Trump Goes Wrong” (both behind NRO’s paywall). You can minimize unnecessary confusion on this point by ignoring comments that avoid discussion of the definitional provision and commenters who have never construed a statute.