Since Jack Smith and his prosecutors dropped a multicount 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 42 USC §2205 (3), 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 National 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, even as a former president, has all the access he wants to all his presidential records, even those which may have been classified, and may give such access to his designated agents . 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 original heart of the purpose of the Espionage Act — is beyond ludicrous