Donald Trump is known for listening to lawyers and advisers who tell him what he wants to hear rather than those who understand what is permitted under the law. That paradigm – bad legal advice that plays to Trump’s combative instincts – may have contributed to his indictment for violating the Espionage Act and obstruction of justice.
The paradigm has been at work before. In 2019, with Trump’s participation, his personal attorney Rudolph Giuliani orchestrated a hair-brained scheme to pressure Ukraine to open, without foundation, a criminal investigation of Joe Biden and his son, Hunter. The scheme resulted in Trump’s justified but nationally divisive impeachment.
In 2020, Trump attorney John Eastman developed a far-fetched legal theory that Vice-President Pence could unilaterally declare Trump the winner of an election that he had lost. Trump’s buy-in to the theory helped bring on the Jan. 6 riot and his second justified, but again polarizing, impeachment.
In both instances, bad advice damaged not just Trump but the country, which brings us to the Espionage Act indictment where the same paradigm is at work. According to the Washington Post, in the Fall of 2022, some of Trump attorneys, including Christopher Kise, a former Florida solicitor general, proposed to resolve the classified documents dispute with the Department of Justice (DOJ) by offering to return “all documents” in exchange for the DOJ dropping criminal charges.
Trump rejected that advice in favor of a far-fetched interpretation of a law called the Presidential Records Act advocated by his more aggressive attorneys and advisers. According to the Washington Post, they included Tom Fitton, the head of conservative legal foundation Judicial Watch. The Presidential Records Act is a straightforward law that makes a clear distinction between “presidential records,” which are records received or created by the president in carrying out his official duties, and a president’s “purely private” records, such as personal diaries. Under the Act, when a president leaves office, ownership of presidential records vests in the United States.
These attorneys and advisers may have convinced Trump that notwithstanding the plain language of the Presidential Records Act, simply by removing the classified documents from the White House on leaving office, he converted presidential records into personal records and immunized himself from criminal prosecution.
This theory is akin to Trump’s earlier claim that he could declassify documents just by “thinking about it.” Followed to the theory’s logical conclusion, since the classified documents were now his personal papers, Trump was free to sell top-secret U.S. military plans to the highest bidder, including Russia or China.
William Barr, Trump’s former attorney general, accurately called the theory “wacky,” pointing out that “battle plans for an attack on another country or Defense Department documents about our capabilities are in no universe Donald J. Trump’s personal documents.”
In the Fall of 2022, the DOJ had been blocked by a federal judge from using the classified documents in its investigation and Special Counsel Jack Smith had not yet been appointed. While a settlement should have been pursued from the outset, the DOJ might then have been open to the deal that Kise suggested to Trump.
But according to the Washington Post story, Trump refused to even explore a deal with DOJ that might have avoided criminal charges, in favor of Fitton and the war camp’s apparent advice that the Presidential Records Act was a get out of jail free card, which it is not.
The reality is that Trump has staked his liberty not on a silver bullet but on a desperate Hail Mary pass. What should have been a strategy of last resort became the first resort.
That, of course, was Trump’s choice as the client. But that choice, which may have been influenced by bad legal advice, has put him in serious legal jeopardy and once again plunged the country into a deeply divisive legal proceeding.
Gregory J. Wallance, a writer in New York City, was a federal prosecutor in the Carter and Reagan administrations, where he was a member of the ABSCAM prosecution team that convicted a U.S. senator and six representatives of bribery. His newest book, “Into Siberia: George Kennan’s Epic Journey Through the Brutal, Frozen Heart of Russia,” is due out in December. Follow him on Twitter @gregorywallance.