Lawfare: The Marxist Attack on the U.S. Justice System
The Second Indictment of Donald J. Trump.
“‘Lawfare,’ currently used by the U.S. military and foreign relations personnel, was not a new term but a concept arguably perfected by the Soviets.” 1
Lawfare: “the use of law as a weapon of war.” 2
We are at war on many fronts in this country. We are in a Proxy War with Russia in Ukraine. We are in a trade war with China. We are at war on our southern Border left open by a corrupt Democratic administration. We are engaged in a cultural war as neo-leftist notions of gender, biology, and genetics attack the foundations of our traditional notions of a family. Apparently we are also re-litigating who decides how we raise our children, the parents or the State. Remember “It Takes a Village?” Yeah, Hillary Clinton never went away.
But the tip of the spear of the “Color Revolution” is pointed at the broad chest of Presidential candidate Donald J. Trump (“D.J.T.)”), the 45th President of the United States.
The Charges
Eight different criminal statutes are recounted in the Indictment of D.J.T.:
Thirty-one counts of Gathering, Transmitting, or Losing Defense Information, 18 U.S.C. §793(e),
One count of Conspiracy to Obstruct Justice, 18 U.S.C. §1512 (k),
One count of Withholding a Document or Record 18 U.S.C. §1512(b)(2)(A) 2,
One Count of Corruptly Concealing a Document of Record 18 U.S.C. §1512(c)(1) 2,
One count of Concealing a Document in a Federal Investigation 18 U.S.C. §1519,2
One count of Scheme to Conceal 18 U.S.C. §1001(a)(1),2
One count of False Statements and Representations 18 U.S.C. §1001(a)(2) 2)
One count of False Statements and Representations 18 U.S.C. §1001(a)(2) 2.
Boiled down, there are basically two charged crimes; Mishandling of National Defense documents and Conspiracy. Charges 3-8 are essentially lesser included offenses. It’s a common practice for prosecutors to overcharge if the Court or Jury won’t convict on the primary felonies.
The defense information charges relate to various “Top Secret” documents related to the nuclear programs and military capabilities of a foreign country (North Korea?, Iraq?) and Trump’s retention of the Presidential Daily Brief (PDB.) See pages 28-33 of the indictment for the individual document descriptions, such as they are.
Each charge under 18 U.S.C. §793(e) relates to the improper use or possession of classified documents. Still, the Assistance Attorney General does not charge D.J.T. for his service or handling of “classified documents.” This should be interpreted as an acknowledgment that Trump did indeed declassify all documents in his possession contrary to the popular media narrative. If the issue were the declassification of the documents in question, Jack Smith would have, should have charged Trump with 18 U.S.C. §1924 Unauthorized Removal or Retention of Classified Documents, 26 U.S.C. §7213 Unauthorized Disclosure of Information, or even Treason, and Sedation.
Smith may have tried to get Indictments on these more serious charges and was denied by the Miami Grand Jury or decided that he did not have evidence of these alternative charges.
Problems for Assistant Attorney General Jack Smith.
So far, the public has only been able to consider the accusations of the Justice Department, and little to no analysis has been attempted to analyze Trump’s defenses that, in my opinion, will lead to a quick dismissal or a not-guilty verdict if the trial moves to a final jury verdict. Much will be known when Trump’s attorney files his response. Smith has a lot of problems.
A. Assistant Attorney General Jack Smith committed Perjury when he signed the Indictment.
On the right is page 3 of Indictmentent, signed under penalty of perjury by A.A.G. Jack Smith, which recounts the so-called “smoking gun” comments by Trump to a podcaster where he supposedly was showing top secret documents about the defenses of another country.
On the left is the reporting of Paul Sperry of Real Clear Investigations and his bio. Paul is reporting he has seen the original transcript, and A.A.G. Smith deleted several governments, completely changing the import of the alleged confession by Trump.
Mr. Smith will be in a lot of trouble if Mr. Sperry accurately reflects the truth.
B. Accusations against NARA
Attornies for D.J.T. accused the government Archives of refusing to assist D.J.T. in packing, removing, and storing his administration’s documents. Including every single document in question. The Director at the National Archives refused active assistance given the havoc created by the January 6th “mostly peaceful protests.”
Trump was forced to move the boxes along with his staff, and they were given a temporary home at Trump’s Presidential Offices located at Mar-a Lago.
In the Indictment, the government over and over again mischaracterizes Mar-a-Lago as a “club,” an “active social club instead of the location of Donald J Trump’s Library/Official Office.”
Mar-a-Lago was the Office of the 45th President of the United States, an official designation made by the federal government. No different than the practice of other past Presidents designating a Chicago address (Obama) or a Presidential Library in Simi Valley, California (Ronald Reagan).
C. The Corrupt Department of Justice Investigation.
In a June 9, 2023, letter to Merrick Garland letter from Congressman Jim Jordan, Chairman of the House Judiciary Committee, asked Mr. Garland to comment on the allegations that a “Buden Justice Department lawyer “inappropriately sought to pressure a Trump-affiliated lawyer with the protest of a judgeship. This was an attempt to bribe a Trump attorney to flip on his client—a felony.
D. The Justice Department’s interference in the F.B.I. Investigation of the Mar-a-Lago Raid and Investigation.
In the same June 9 letter from Jim Jordan, Mr. Jordan recounts the testimony of Senior F.B.I. official Steven D’Antuono who observes several inexplicable D.O.J. management decisions in the raid on Trump’s offices. r. Mr. D.Antuono is no fan of Trump and the right, but he does appear to be a loyal (to the institution) F.B.I. agent. He is vilified for his role in leading the investigation into the January 6 unexploded pipe bombs that have led nowhere and the investigation into the alleged threats against Governor Whitmer where the defendants uniformly caused the F.B.I. of entrapment.
Mr. D’Antuono questioned senior management why the Maimi field office did not lead the raid rather than a special task force from Washington, D.C. He could not explain why the FBI/DOJ did not assign a U.S. Attorney’s Office to the matter., the normal course in such high-level investigations, particularly when the Govgovernment is investigating the leading Presidential opponent of the current President.
The F.B.I. did not seek permission to conduct a voluntary search of the Mar-a-Lago government. The F.B.I. had been allowed voluntary inspections on two prior occasions. In almost identical circumstances, the FBI/DOJ allowed Joe Biden to search his offices and homes, and they did not present him with a search warrant.
Finally, the F.B.I. refused to wait until the Mar-a-Lago Documents “custodian of the record,” a Trump attorney arrived to observe the search. When she arrived after the search started, she was prevented from entering Trump’s offices to observe the search.
I believe this is a fatal flaw yet to raise its head in public discourse. Without the Custodian of Records observing the search and collection of documents, the court should not admit any evidence offered by the government acquired from that search. There is no Chain of Custody for the documents. Trump’s attorneys can be expected to allege that any compromising documents they state came from the search were not.
E. The Misapplication of Executive Order 13526
The indIndictmentkes a lot of noise surrounding President Obama’s Executive Order #13526 on the Classification and Declassification of Confidential government information. In general, it is my position and the opinion of many legal scholars that this order and its predecessor versions from Jimmy Carter and William Clinton that the provisions of the Order do not apply under the Constitution to a President who declassified material before he leaves office. Section 13526 does not apply to President Trump.
”The Executive Power shall be vested in a President of the United States of America.”
Putting aside the Constitutional framework for a moment and taking Executive Order #13526 on its face, there are still problems with its application in this circumstance.
Trump declassified documents and other materials related to “RussiaGate” and the Steel Dossier in writing before he left office. The Memorandum is recorded in the Federal Register.
John Solomon reported that an attorney for Trumo claimed that Trump had a standing order to declassify any document he took home with him. This would reasonably cover Trump’s possession of any document stored at Mar-a-Lago.3
3. It is unclear what the subject matter of the documents in question relates to. But if they relate in any way to Russia, Ukraine, the Five Eyes, Hillary Clinton, the Mueller and Durham investigations, the documents in question were not classified, and the full complaint falls into dust. Some have argued that no specific charge or statute is charged based on improper use of classified materials. This is true. However, every crime alleged is predicated on the misuse of classified materials.
There is no crime under 18 U.S.C. §793 (3) or 18 U.S.C. §1512 (k) conspiracy if the documents were not classified. The documents did not belong to the government, as Trump had declassified them all under Article II Section 1 of the Constitution. They belong to Trump, and he did not have to account to the F.B.I. or the Justice Department for storing and possessing the documents. Look at the language of the indictment and not at the statute.
On the first page of the Indictment, it states that Trump had lawful access to “Sensitive classified documents” On page 34 of the Indictment, the Conspiracy charge also is dependent on the allegation that Trump “to keep classified documents he had taken….”
Contextually, there is no crime if the documents in question were not classified at the time of the raid on Mar-a-Lago.
What’s Next?
We will see what, if anything, happens at the arrest and arraignment. The crowds promise to be YUGE. Hopefully, it is peaceful, and no one is hurt. We should see within 30 days what response Trump and his attorneys offer and what evidence accompanies their Answer to the charges and their Motion to Dismiss.
When it happens, check back with me on my Substack or Twitter at @DoctorMalibu.
DOC
Charles J. Dunlap, Jr., Colonel, USAF, “Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts,” Prepared for the Humanitarian Challenges in Military Intervention Conference Carr Center for Human Rights Policy Kennedy School of Government, Harvard University. Washington, D.C., November 29, 2001. http://www.duke.edu/~pfeaver/dunlap.pdf.
Lawfare, the Latest in Asymmetries,” Council on Foreign Relations, March 18, 2003. http://www.cfr.org/publication/5772/lawfare_the_latest_in_asymmetries.html. (accessed 26 December 2008)
Get out of the Trump Death Cult!
cry more impotent boomer