Former Asst. US Attorney Takes Apart Trump Case and Raises Some Important Questions

AP Photo/Andrew Harnik

We’ve covered some of the legal opinions on the Trump indictment, and there are some varied views. We’ve reported some of them, including those from Jonathan Turley, Andrew McCarthy, and Alan Dershowitz, among others.


But there’s a Twitter thread from Will Scharf that makes some interesting points that are not being picked up by the media.

Scharf is a former Assistant U.S. Attorney who worked on two Supreme Court confirmations and clerked for two federal appellate judges. He’s also running for Missouri Attorney General. Like many, he thinks the prosecution against the former president is “outrageous.”

Click on the post to see the entire tweet. 

Scharf notes that Article 3 Project’s Mike Davis and Judicial Watch’s Michael Bekesha’s argument:

…distills down to the idea that the President’s authority to retain Personal Records, as well as his rights to access his Presidential Records, make it impossible to prosecute him under the Espionage Act section at issue here, § 793(e), because the government cannot prove “unauthorized possession,” as required under the statute.


If you accept that argument, then the first 31 counts based on “unauthorized possession” could fall.

But Scharf says it also might be hard to meet the provisions of the act as to intention.

Section 793(e) requires the government to prove that the Defendant KNEW he had National Defense Information (NDI) in his possession, and also that the Defendant KNEW that there was a government official entitled to receive the Information, and also that the Defendant then WILLFULLY failed to deliver it to that official.

This is a very high set of mens rea bars to jump, in any circumstance. Proving a Defendant’s intent and knowledge can often be tough. But it’s even tougher here.

“Mens rea” refers to the intent or knowledge of wrongdoing. So Scharf makes the point that if Trump thought these were his personal records — mementos, clothes, etc., as he described in his Bedminster remarks — he may not have had the willful intention to unlawfully retain them.

Scharf also makes the point that just because it’s classified doesn’t necessarily make it national defense information under the Espionage Act.

Now, some might point to the alleged call that is mentioned in the indictment, where Trump allegedly displayed a document to someone else and claimed it was “secret.” That’s a problem, if true. You’d also have to show it met all those elements, as Scharf noted, and that it “could be used to the injury of the United States or to the advantage of any foreign nation.” If it’s a briefing document from 2019, for example, would it even have any relevance now? As Scharf notes, we don’t know all the facts, but Trump’s legal team is going to have to make this point to the jury.


Scharf also speaks about “far and away the most troubling side story” that happened with co-defendant Walt Nauta’s lawyer, Stanley Woodward. We covered it, and we noted how the former acting Director of National Intelligence John Ratcliffe accused the Special Counsel’s team of acting improperly to get Trump. But most of the rest of the media seems to have skipped right over it.

The allegation is that when Chief of the Counterintelligence Section of the DOJ’s National Security Division Jay Bratt had a conversation with Woodward about Nauta’s case, he “suggested Woodward’s judicial application might be considered more favorably if he and his client cooperated against Trump.” Scharf notes that’s incredibly concerning since Woodward is making such a serious claim, and he’s no fly-by-night. Given what we’ve seen from the FBI/DOJ in the past few years, it’s not hard to believe this.

Then there are the questions about attorney-client privilege. Scharf notes there’s information in the indictment from one of Trump’s attorneys, Evan Cocoran. Now you’re not supposed to be able to get the communications between attorneys and their clients, but they reportedly forced Corcoran to testify using the “crime fraud” exception. That’s an exception that allows you to pierce the privilege if the client is involved in criminal conduct and trying to enlist the attorney’s assistance in the commission of a crime.


But if that’s the case, just reading this indictment, it feels like the obstruction charges may have been structured specifically in part just to get Corcoran’s testimony in, to help buttress what would otherwise be a much weaker case against Trump on the substantive charges.

In any case, the Special Counsel is going to have to show why the communications in question were a solicitation by Trump to Corcoran to join him in criminal acts, as opposed to Trump asking a lawyer he hired to advise him on his legal defense, to tell him what his options were, or to outline what defensive steps might be possible, and what was done by others in previous cases like Hillary’s emails.

Reading the conversations in the indictment, they sound a lot more like honest attorney-client communications than they do crime fraud to me, even with all ellipses and modifications.

I expect a motion by Trump’s legal team on this issue, and if they win that will cut the guts out of much of this case. Very tough to prove up intent and willfulness the way the government needs to without Corcoran, at least based on what we see in the indictment.

Scharf also makes a great point about the timing of this indictment. Now, any lawyers who have been involved in criminal law or the government will tell you that the government virtually never does anything fast. Yet in this matter, you have a case brought very quickly, which is not the norm. He thinks it is political.


The fact that they didn’t is strong evidence to me that a big part of this is the burning desire among many on the left to “Get Trump.” They don’t care about the law, they don’t care about the facts, they don’t care about norms or propriety or anything else. They just want Trump in cuffs.

It’s not the way things are supposed to work, and the fact that our law enforcement and intelligence apparatuses are being weaponized in this way against a leading presidential contender is truly a black mark on them and on our republic.

If they do this now, it will hang over the entire election season. Scharf suggests that the Trump team move for a continuance until after the vote.

Finally, Scharf talks about Special Counsel Jack Smith and his “overzealous” prosecution of then-Virginia Gov. Bob McDonnell, which destroyed a Republican with a rising political career. Scharf raises concerns about why they picked Smith.

SCOTUS unanimously overturned the decision on review, finding that the prosecutors went too far in going after actions that may not even have been illegal regarding gifts McDonnell and his wife received.

Now, we’ll have to see what happens here, as the facts in the Trump case come out and we see how the evidence truly stacks up.




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