Trump did not violate the law because he could not violate the law

Those conservatives rightly outraged at the Trump indictment keep comparing his treatment to that given to Hillary, Biden, and Pence, each of whom admitted to violating national security laws. That’s the wrong argument because Trump is not similarly situated to those lawbreakers. Instead, because he was president when he took possession of the documents, Trump cannot be guilty of the crimes with which he’s charged.

It starts with the Constitution, which created three equal branches of government: The legislative branch (Art. I), the executive (presidential) branch (Art. II), and the judiciary (Art. III). As part of his authority as the nation’s chief executive, the Art II president is also commander-in-chief of the military.

There are three analytical strands at work here. First, as Conservative Tree House explains, the Espionage Act of 1917, which is the basis for the charges against Trump, was enacted long before the document classification scheme began in 1951. CTH notes that isn’t arguing that the documents were classified; it’s arguing that the documents in Trump’s possession are “vital to the defense security of the United States.”

Mark Wauck sums up the problem:

CTH is absolutely correct that the Trump situation is NOT what the Espionage Act purports to be about. The use of the Espionage Act has regularly been prone to abuse, and it has always had its critics because of the very broad and vague language, such as “relating to”. Hopefully Trump’s lawyers will attack from this angle in pre-trial motions.

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