This is a concise article at The Federalist, written by Will Scharf who is a former federal prosecutor and currently a Republican candidate for Missouri Attorney General.
I’ll give you the 6 headings and some excerpts:
1. Interplay Between the Espionage Act and the Presidential Records Act
… Section 793(e) [of the Espionage Act] requires the government to prove that the defendant knew he had National Defense Information (NDI) in his possession, knew there was a government official entitled to receive the information, and then willfully failed to deliver it to that official…. [But t]he Presidential Records Act sets up a system where the president designates all records that he creates either as presidential or personal records (44 U.S.C. § 2203(b)). A former president is supposed to turn over his presidential records to the National Archives and Records Administration (NARA), and he has the right to keep his personal records.
Based on the documents I’ve read and his actions I’ve read about, I believe Trump viewed his “boxes” as his personal records under the PRA…. [and so] he may have believed NARA simply had no right to receive them at all — meaning he did not willfully withhold anything from an official he knew had the right to receive them…. It is simply not the case that the fact that previously classified documents were found in boxes in a Mar-a-Lago bathroom means Trump is guilty….
2. Classification and National Defense Information
Just because something is classified… does not mean it is National Defense Information within the meaning of the Espionage Act. NDI, for the purposes of an Espionage Act prosecution, is defined as one of a long list of items “relating to the national defense which information the possessor had reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.”…
3. Walt Nauta and DOJ Misconduct
… Nauta’s lawyer, Stanley Woodward, alleged in a court filing that during a meeting with prosecutors about his client’s case, the head of the Counterintelligence Section of DOJ’s National Security Division Jay Bratt “suggested Woodward’s judicial application [for a DC Superior Court judgeship] might be considered more favorably if he and his client cooperated against Trump.”… Woodward… is a legal heavyweight, and he is leveling an extremely serious allegation of misconduct against a senior official at DOJ….
4. Attorney-Client Privilege
The indictment relies on a significant amount of information received, in one form or another, from one of Trump’s lawyers, Evan Corcoran, who was compelled to testify in front of the grand jury. According to news reports, the argument for breaching the privilege was the crime-fraud exception….
[T]he 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…. Reading the conversations in the indictment, they sound a lot more like honest attorney-client communications than they do crime [or] fraud to me, even with all ellipses and modifications made by the special counsel’s team….
5. Timing: Why Now?
… They know Trump is the leading candidate for president. They know he is beating Biden in the polls. They must know how bad it looks for a sitting president’s DOJ to indict that president’s primary political opponent. DOJ has long had policies in place to prevent new indictments from being brought, or overt investigative acts being committed, in the months preceding an election in order to avoid the appearance of political timing….
If I were Trump’s lawyers, I would consider moving to continue further proceedings until after November 2024….
6. Jack Smith: Why Him?
… The single case Jack Smith is most publicly associated with was the prosecution of Virginia Gov. Bob McDonnell. In that case… [a] unanimous Supreme Court smacked Smith down for an overzealous, legally defective prosecution of a Republican politician….
As has been noted publicly as well, Smith’s wife is a leftist filmmaker who produced a hagiography of Michelle Obama, and he currently lives in the Netherlands…. If this is not a political prosecution, if Merrick Garland wasn’t just trying to “get Trump,” then why was Jack Smith the pick?….