Emptywheel: the Elements of The Offense for an 18 USC 793e Prosecution

[Fiendish Thingy]

https://www.emptywheel.net/2022/08/26/the-elements-of-the-offense-for-an-18-usc-793e-prosecution/

Excellent overview of the questions a jury would be asked to find in order to convict Trump of violating that section of the Espionage Act.

Back on August 10, I did a post laying out the elements of the offense from some pattern jury instructions for 18 USC 793e, which is what a judge would instruct a jury to consider if the Trump document theft ever went to trial.

I want to update with contents of the affidavit that so that others understand how things like the June 3 meeting at Mar-a-Lago were not only an attempt to get the stolen classified documents back, but were, short of doing so, a way to establish probable cause in the event that Trump would not cooperate. These efforts would overcome the real challenges — laid out in this WaPo article — of holding a former President accountable.

Key to holding Donald J. Trump accountable for the theft of classified documents will not be, as it is in most cases, reference to the multiple Non-Disclosure Agreements that cleared people have to sign (for the reasons the WaPo laid out). Instead, it would be to show that the President Records Act required Trump to return every Presidential Record, classified or not, and that because he did not have clearance after he was no longer President nor (according to Joe Biden) a need to know, he could not retain any NDI. Given the atrocious conditions under which he kept this stuff at Mar-a-Lago and his refusal to fix that, the guidelines on retaining classified information (which are cited in the affidavit) would also be key.

Here’s what jurors would be asked to decide:

Much, much more at link.

[Fiendish Thingy]

2. You can't appeal an indictment, not in the way you describe

You can only appeal a conviction

https://www.burnhamgorokhov.com/criminal-defense-resources/federal-criminal-process/federal-indictments-faqs/

Can a federal indictment be challenged?

Yes. The most obvious and most common challenge to an indictment is showing the allegations are not true at a trial. But what about challenging an indictment before trial?

There are a number of different challenges that can be made to an indictment before a case gets to trial. Such challenges will be very fact-intensive based on the individual circumstances of each case. Here are some examples that an indictment can be challenged for:

failing to provide sufficient detail to a defendant as to the basis and nature of the charges against him;
failing to set forth an actual violation of law;
failing to plead all of the elements of a crime;
alleging a crime outside the statute of limitations;
bringing a criminal case in an improper venue;
the prosecutor’s failure to accurately advise the grand jury on the applicable law during the grand jury phase of a case, or other prosecutorial misconduct.

While a successful challenge to an indictment is a rare occurrence, a skilled federal criminal defense attorney will often assert challenges to an indictment for other reasons as well. For example, the prosecutors may be ordered to provide more evidence, or to provide the evidence earlier than they otherwise would be required.