Tag: espionage act
Espionage Act: Trump And Teixeira Both Suspected Of The Same Crimes

Espionage Act: Trump And Teixeira Both Suspected Of The Same Crimes

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Airman First Class Jack Teixeira, 21, was charged yesterday on two counts of violating federal espionage laws: one count under 18 US Code 793, for unauthorized gathering, transmitting, or losing national defense information, and one count for violating 18 US Code 1924, unauthorized removal and retention of classified documents or material.

Donald Trump has been under investigation for violating both statutes in his theft and mishandling of classified documents by keeping them in an insecure storage room at his palatial estate in Palm Beach, Mar-a-Lago.

Teixeira received a top-secret clearance to handle so-called S.C.I., or Sensitive Compartmented Information, in his job as a computer network technician for the 102nd Intelligence Wing of the Air National Guard in Massachusetts. Several documents marked “Top Secret S.C.I.” were found by the FBI in Trump’s office when they searched Mar a Lago last August.

The New York Times reported that Teixeira is under investigation for “using his security clearance to search ‘for classified reporting regarding the U.S. intelligence community’s assessment of the identity of the individual’ who leaked the documents.” That would appear to be a violation of obstruction of justice statutes by attempting to interfere with the investigation of the crime by the FBI.

It has been previously reported that Trump is under investigation by Special Counsel Jack Smith for violating the same statute against obstructing justice. And this week it was reported that Smith brought witnesses before the grand jury in Washington to ask them about Trump showing classified information to unauthorized individuals after he left office. One of the documents Trump aides were questioned about was a classified map that Trump reportedly showed to aides or others on an airplane, and separately to a journalist writing a book.

Smith is also looking into reports that Trump ordered aides to bring him boxes of classified documents to go through after he received an FBI subpoena for all classified documents in his possession. The investigation includes suspicion that he may have removed documents from the boxes and took them with him when he departed Mar-a-Lago for his golf club in Bedminster, New Jersey last May.

There were photos in the Daily Mail of Trump aides carrying boxes similar to the ones used to store the classified documents at Mar a Lago onto the plane Trump flew to New Jersey. Special Counsel Smith and his investigators are said to be operating on the assumption that Trump may still have classified documents he has not turned over to the government.

That a former president and a 21-year-old Airman First Class in the Air National Guard who shared racist and antisemitic memes on the Internet are both under investigation for committing the same crimes involving the Espionage Act tells you all you need to know about the state this country is in today.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

Please consider subscribing to Lucian Truscott Newsletter, from which this is reprinted with permission.

Upholding National Security, Justice Serves Notice On Trump's Judge

Upholding National Security, Justice Serves Notice On Trump's Judge

The Department of Justice yesterday put a federal court judge in Florida and the 11th Circuit Court of Appeals on notice that we are headed for a Constitutional crisis, not to mention a national security nightmare. In its first filing, the DOJ notified the 11th Circuit that it intends to appeal Judge Aileen Cannon’s order that a special master be appointed to review all 11,000 documents Donald Trump removed from the White House to Mar a Lago when he left office. At the same time, the DOJ filed with Judge Cannon a motion for a “partial stay” of her order pending its appeal to the 11th Circuit.

What the DOJ is asking of the Florida judge is to exempt approximately 100 highly classified documents from her order for the special master. Trump has no legal right to claim that “he owns or has any possessory interest in classified records,” the DOJ told the judge. Addressing the issue raised by Trump that he somehow can assert executive privilege over the seized documents, the prosecutors reminded the judge that in May when the department issued a subpoena for the records held at Mar a Lago, Trump “himself declined to assert any claim of executive privilege over the classified records” the FBI seized. That would have been Trump’s opportunity to claim executive privilege, the DOJ filing said. That he failed to do so at that time, or when he turned over even more documents to the National Archive in January, should discount his recent claim of executive privilege as a delaying tactic and nothing more.

The DOJ quoted the 1974 Supreme Court case over the White House tapes,­ United States v. Nixon, reminding the judge that the decision found that any claim of executive privilege or any other privilege over “classified” (emphasis in the filing) records would be overcome by what the Supreme Court had called, “the government’s demonstrated, specific need” for the evidence in question, in this case, the 100 classified documents the DOJ is asking the judge to exempt from her order.

“The government, and the public would suffer irreparable harm absent a stay,” the motion said, reminding the judge that “the court correctly recognized the government’s vital interest in conducting a national security risk assessment of the possible unauthorized disclosure of the classified records and any harm that may have resulted.”

This is what is colloquially referred to as calling out the big guns. When the government puts “national security” and “risk” in the same sentence, they are putting members of the judicial branch on notice that what is at stake here is far above their pay grade to block, bar, or delay because national security is constitutionally the business of the executive branch, not the judiciary.

The rest of the DOJ motion consists of laying a groundwork and fact pattern for a potential appeal should Judge Cannon refuse to grant its request for a stay of her order regarding the classified documents. It’s complicated, but the DOJ began by explaining that the national security assessment and its investigation of Trump’s handling of the classified documents cannot be “segregated” from one another.

The motion included this blockbuster piece of news: Because of “uncertainty regarding the bounds of the court’s order,” the intelligence community (read: Director of National Intelligence, or DNI) consulted with the DOJ and decided it would have to “pause temporarily this critically important work.” Pulling the lanyard on yet another big gun, the DOJ said that “the government and the public are irreparably injured when a criminal investigation involving risks to national security is enjoined.”

DOUBLE BOOM! Not one but two big revelations here:

The DNI suspended its national security review of what may have happened to the top-secret documents Trump had in Mar a Lago because of Judge Cannon’s order. And two, the DOJ is for the first time telling the judge and the world that its investigation of Trump is not simply criminal in nature. It’s an investigation of whether or not Trump caused damage to the national security, an offense which would violate U.S. Code 793 involving the disclosure or even the movement of “national defense information” without the safeguards and security measures dictated by law for such highly sensitive material.

The DOJ spends a lot of time in its motion detailing the errors made by Judge Cannon in her order, pointing out that a special master has no need whatsoever to review classified documents because “the classification markings establish on the face of the documents that they are the government’s records, not the Plaintiff’s (Trump’s) personal records.” The DOJ points out that a review of the classified documents is not necessary for attorney-client privilege because none of them contain any communication between Trump and his lawyers. Then the government went into a lengthy disquisition on why the classified documents are not covered by executive privilege either. Again, it’s complicated and involves several Supreme Court decisions concerning assertions of executive privilege, but the gist of it is that a president or especially a former president cannot claim executive privilege over materials within the executive branch, only over materials being sought by other branches, such as a congressional committee, or by a civilian seeking to break the privilege in a judicial proceeding.

To make their point, the DOJ attorneys cited U.S. Code Section 793 specifically as “prohibiting the unauthorized release of national defense information. The classified documents are not merely relevant evidence; they are the very objects of the relevant criminal statute,” U.S. Code 793.

Then the DOJ reminded the judge that it’s not only 793 that’s at issue. “The government is investigating the adequacy of response to a grand jury subpoena for all documents in the Plaintiff’s possession ‘bearing classification markings.’” That, my friends, is a reminder that Trump is suspected of obstructing justice, because the subpoena in question, issued in May, is the one Trump did not fully and willingly respond to, giving rise to the search warrant executed by the FBI in August that turned up more than 100 classified documents he had not turned over to the government.

Practically the rest of the DOJ motion is a primer for Judge Cannon, explaining to her, since she demonstrably does not know, how a federal investigation works and how the FBI and the intelligence community are one in the same, and so barring the FBI from “reviewing” the classified documents prevents the intelligence community from doing the same thing -- something the judge apparently believed she was allowing in her order on the special master.

I know I’m overusing the phrase, “it’s complicated,” so I’ll boil it down in non-legalese.

The Director of National Intelligence is formally positioned in the chain of command over the CIA, DIA, NSA, and other parts of the intelligence community, although she, Avril Haines, presides over an office that essentially coordinates all the various arms of intelligence gathering but does not do any intelligence work itself. In other words, she has a staff, but they’re bureaucrats – in old fashioned terms, paper-pushers. She doesn’t have any agents or investigators.

So, if the DNI wants to conduct a review of materials to determine whether their mishandling has resulted in a threat to national security, Haines has to call upon the FBI to do the investigation for her. For example, if the DNI wants to know who has seen a particular classified document, or all of them for that matter, she must ask the FBI to do the interviews of the relevant witnesses, who might include aides to the former president, friends of his, or the workers at Mar a Lago who were seen on surveillance cameras carrying boxes of classified documents from one place to another.

An estimation of what potential damage might have been done to the national security cannot be done without (1) the classified documents, and (2) the FBI agents necessary to do the investigations about them.

Judge Cannon’s order on the special master, grossly slanted in Trump’s direction as it was, did not allow for this cross-pollination between the FBI and the intelligence world. Cannon thought she could bar the FBI from “reviewing” the classified documents or conducting interviews with witnesses as part of their criminal investigation, while allowing the risk assessment by the DNI to use the documents.

Major, major error. The judge was trying to appear like she gave a damn about national security by allowing the DNI investigation to go forward, while barring the FBI and DOJ criminal investigation from using the classified documents. The DOJ took several pages to spell out for her how and why that cannot be done. If you do one investigation, you do the other. The DOJ motion includes an appendix written by Alan E. Kohler, the assistant director of the counterintelligence division of the FBI, explaining in great detail, six pages of detail, why the DNI’s national security review and the DOJ’s criminal investigation of Trump are “inextricably linked,” to use the document’s language.

I rather doubt that Judge Cannon, sitting down there in Florida with her Federalist Society membership card and more than excellent MAGA credentials, even knew that the FBI has a “counterintelligence division” or that the DOJ has a national security division. She should have, naturally, because the search warrant for Mar a Lago was executed by Jay I. Bratt, the chief of the DOJ’s Counterintelligence and Export Control Section of the National Security Division. She could have learned this by reading news stories or if she missed it in the news, she’ll be able to learn it today if she reviews, all the way to the bottom, the motion filed by the DOJ today, because right there in black and white is Bratt’s signature.

The DOJ informed Trump’s lawyers they were filing the motion today, and Trump, of course, is going to oppose the motion.

The DOJ has given Judge Cannon until Thursday to exempt the 100 pages of classified documents from her order on the special master. If she does not grant the DOJ motion, they will file an appeal with the 11th Circuit at that time.

It’s all very risky, of course. There is Judge Cannon, as Trumpy of a Trumpster as ever sat on the bench, and there is the 11th Circuit, where Trump has appointed six of eleven judges.

In the past, at least, the federal judiciary right up to the Supreme Court, has shown great deference to the government when matters of national security or cases involving the military are brought. It is not the job of judges to defend the nation. It is the job of the executive branch of the government which oversees the Department of Defense and the intelligence agencies, all of which are engaged in the defense of the nation.

This may turn out to be yet another norm jettisoned by judges who believe their oath is not to the Constitution but to Donald Trump. We already have seen the damage one of them can do to the rule of law and potentially to the national security. Next week we’ll get a chance to see how many more, and how deeply, Trump has sunk his team of judicial saboteurs into the fabric of our democracy.

Watch this space.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can read his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

Reprinted with permission from Lucian Truscott Newsletter

How Many Of 'Her Emails' Were Classified? Actually, Zero

How Many Of 'Her Emails' Were Classified? Actually, Zero

Nearly every day fresh revelations emerge in the federal investigation of the national security and presidential records that Donald Trump purloined from the White House. So far, his alibis have been exposed one after another as empty, and we have seen no adequate public reckoning of why he took those papers, what he meant to do with them, how some went missing, or even exactly how many documents he hijacked to his Florida estate.

As more and more evidence of the former president’s reckless and potentially criminal misconduct comes to light, he and his defenders keep pointing to “her emails.” They insist that because the Justice Department declined prosecution of former Secretary of State Hillary Clinton after a long and thorough probe of how she handled allegedly classified information, there should be no investigation, let alone indictment or conviction of Trump.

But while we don’t yet know the extent or nature of Trump’s abuse of classified documents, we can determine how many were found by investigators, after exhaustive searches, among Clinton’s thousands of State Department emails.

The accurate and definitive answer is zero – although few if any news outlets have informed the public of that startling fact. Moreover, it is a fact that the Trump administration itself confirmed three years ago.

In the recent coverage that references her emails, former FBI Director James Comey is sometimes quoted as saying that of the 33,000 Clinton emails examined by bureau investigators, three had classification markings. That’s less than one-hundredth of one percent, and not worth comparing to Trump’s malfeasance anyway, but it’s still false -- apparently meant to bolster Comey’s absurd claim that other Clinton emails were “classified” although never marked as such.

Those three State Department documents were “call sheets,” innocuous memos reminding Clinton to make scheduled phone calls. During her FBI interview, investigators showed her one of those memos, reminding her to place a condolence call to the president of Malawi--not exactly a top secret matter. As Comey himself later admitted, any classification marking on that sheet had been wrongly applied.

In short, the three supposedly classified documents attributed to her emails were barely even confidential, let alone secret or subject to the sanctions of the Espionage Act.

Still, the hunting of Hillary never ends and – amid regular threats to her by Trump when he was president -- inevitably resumed after the FBI investigation concluded. What has been overlooked is that “her emails” and those of her State Department aides became the target of not one but two departmental probes that picked up where her exoneration by the Justice Department left off.

The first round, which began under Rex Tillerson, Trump’s first Secretary of State, opened with an inquiry into a claim of 41 “security incidents” attributed to Clinton and concluded, after months of argument and appeals by her attorneys at Williams & Connolly, that none of those alleged incidents was valid, though she shouldn’t have used a private email server. In that respect her conduct was no different from her Republican predecessor, the late Colin Powell, who advised her to use private email, or many officials in the Bush White House, including Karl Rove.

The second State Department review commenced with more fanfare in 2019 under Tillerson’s unscrupulous successor Mike Pompeo, who, it is worth noting, soon came under official scrutiny himself for gross and self-serving misuse of State Department resources. By then, the hypocrisy behind Republican indignation over “her emails” had been highlighted by massive, repeated security breaches in the Trump White House, where numerous officials , including Ivanka Trump, unlawfully used private email accounts and normal protective protocols were routinely flouted.

No doubt Pompeo, a veteran of the House Select Committee on Benghazi, hoped to find something, anything to arraign Clinton. But again, in the end, there was zero, zilch, nada. Although the second review began with a July 31, 2019 notice from State Department officials that they “suspected” Clinton might be responsible for 12 classified “spillages,” this investigation concluded nine weeks later that she did not “bear any individual culpability” for those incidents.

Again, the overarching absurdity of the State Department and FBI investigations lay in the fact that nearly all of the documents at issue had been classified retroactively – meaning they had carried no markings identifying them as such when Clinton handled them. Comey's assertion that documents can somehow be deemed inherently secret, without proper markings or any classification history whatsoever, is extremely dangerous and hostile to the concept of open democratic governance. It is an idea that should never have been entertained by a free press.

Nobody in their right mind would hold Clinton, or any official, to be culpable under those circumstances.

The same cannot be said for Trump in the current documents scandal, as must be obvious to anyone who has seen that photograph of the folders, clearly marked “TOP SECRET,” strewn around his office floor at Mar-a-Lago, or the folders emptied of their contents, who knows where.

Despite the hysterical accusations that persist to this day, Hillary Clinton was repeatedly judged to be innocent of jeopardizing national security, including twice by the Trump administration. It now appears frighteningly obvious that Donald Trump is not nearly so innocent.

For Right-Wing Pundits, Garland Is Damned If He Indicts Trump -- And Damned If He Doesn't

For Right-Wing Pundits, Garland Is Damned If He Indicts Trump -- And Damned If He Doesn't

The Justice Department keeps revealing damning details about the ongoing investigation into Donald Trump’s illicit possession of highly classified documents and his alleged effort to conceal and retain those materials. That has some commentators arguing against an indictment of the former president on the grounds that it might spur a backlash from conservatives who will argue that Democrats have weaponized the DOJ.

Trump’s “defenders would claim that every person ostensibly committed to the dispassionate upholding of the rule of law is in fact motivated by rank partisanship and a drive to self-aggrandizement,” Damon Linker wrote last week in The New York Times. “This would be directed at the attorney general, the F.B.I., the Justice Department and other branches of the so-called deep state. The spectacle would be corrosive, in effect convincing most Republican voters that appeals to the rule of law are invariably a sham.”

But this smear of federal law enforcement cannot be staved off by declining to indict the former president, as Linker suggests. It is true that a bloc of Republicans and right-wing media personalities have spent the weeks since the FBI’s August 6 search of Trump’s Mar-a-Lago resort loudly arguing that the action was a partisan sham, and they would certainly continue to do so if he were indicted. Another faction, however, is now preparing to go after the Justice Department on the exact same grounds of Democratic partisanship if it decides not to indict the former president.

This damned-if-they-do, damned-if-they-don’t tendency runs through the columns of Andrew McCarthy, a Trump-skeptical legal commentator respected in higher-brow conservative circles. McCarthy is a former federal prosecutor whose columns run in National Review and The New York Post and who regularly provides legal commentary in his role as a Fox News contributor.

McCarthy’s August 9 column, written in the immediate aftermath of the Mar-a-Lago search, provided a somewhat more sober version of the incendiary conspiracy theories of a justice system weaponized for Democratic benefit that were replete at the time on Fox. The National Review columnist argued that the Justice Department had “obviously” used concerns about classified information “as a pretext” to find evidence tying Trump to the January 6 insurrection. He warned against filing charges on such grounds, saying that such an indictment “would fuel the perception that Democrats are using the Justice Department as a political weapon.”

“The Biden Justice Department is under enormous pressure from the Democratic base to indict Trump, and it is straining to deliver,” McCarthy concluded.

A couple weeks later, McCarthy was still telling readers that any Trump indictment would be politically motivated. After reviewing the redacted affidavit supporting the Mar-a-Lago search warrant, he concluded that the Justice Department would be unlikely to indict the former president unless it had strong evidence to prosecute an obstruction of justice charge or Trump talked himself into an indictment.

“I don’t think the Justice Department and FBI want to prosecute Donald Trump on classified-information or document-retention offenses in light of all the considerable downsides of doing so,” McCarthy explained. But he added: “Of course, the Biden Justice Department has shown itself to be very responsive to the demands of Democrats’ progressive base. As the midterms approach, if the left’s rabid insistence on a Trump indictment gets intense enough, all bets are off.”

After Tuesday’s damning DOJ filing, however, McCarthy concluded in his August 31 column that the DOJ possesses “formidable” evidence of obstruction on Trump’s part and that Attorney General Merrick Garland will likely approve charges. That evidence is so damning, in fact, that McCarthy wrote that the only explanation for not indicting Trump would be that the DOJ is in the service of the partisan interests of the Democratic Party.

This is a serious obstruction case that appears as if it would not be difficult to prove. The Justice Department is under immense pressure from the Democratic base to indict Trump, and the jury pool in Washington, DC, where the government would file any indictment, is intensely anti-Trump. It is thus hard to imagine that Attorney General Merrick Garland will decide against filing charges.

The best hope Trump has of avoiding an indictment is that Democrats would rather run against a wounded Trump in 2024 than indict him in 2022.

Note that McCarthy left himself room to accuse Garland of partisanship regardless of what the attorney general does: If he files charges, it will be because his department is “under immense pressure from the Democratic base to indict Trump,” while if he refrains, the only explanation is that he thinks it will help Democrats by keeping Trump on the 2024 presidential ballot.

To his credit, when the facts change, McCarthy’s stated view changes. To his detriment, the throughline is that if the Justice Department doesn’t do what he wants, it must be because it’s run by Democratic partisans.

It’s easy to imagine that this line of reasoning might spread amid the faction of the GOP that would prefer to see another candidate — perhaps Florida Gov. Ron DeSantis — on the ballot in 2024 in Trump’s stead. It gives such individuals a talking point that suggests moving on from Trump without actually criticizing his behavior: It’s the Democrats who want Trump to be the 2024 Republican nominee! You can tell that’s true because the Justice Department isn’t indicting him!

The staunchly pro-Trump faction, of course, has a different view.

The Justice Department would be wise to follow the facts wherever they may lead and make a decision about whether to indict Trump based on what it finds. Trying to avoid right-wing allegations of partisanship is futile — in that information ecosystem, such conspiracy theories are the coin of the realm.

Reprinted with permission from Media Matters.