The above is the statute used to indict Trump. It is not what I was referring to on Friday because I didn’t know it existed. I was familiar with provisions dealing with classified information and in fact I got out my copy the federal criminal code and rules of criminal procedure and basically everything to do with federal crimes. A new version is printed every year and I got mine and it only went up to section d. So I figured e-h must have amended after my time. The version I have is from 2004. The last year I was in the government. So I figured it must be later than that but in fact it was apparently added in 1995 or 1996, so I don’t know why it wasn’t in my version. I didn’t spend the time to figure out what happened, but the exact text of section e follows. Read it and then I’ll comment on what’s going on.

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or

All right, notice that this section doesn’t mention classified information! Smith didn’t want to get into a contest over a president’s ability to declassify anything and everything without going through any process. No one can put a process on the president’s constitutional powers All classification authority comes from him and so does all declassification authority. Smith steered clear of that controversy.

If you bothered to read the indictment, which I did, you will know that it doesn’t mention the Presidential Records Act which is the non criminal law at bottom of this whole controversy. And as has been mentioned in this space previously, the act has potential constitutional problems but remember in the Bill Clinton audio tapes in his sock drawer case it decided that anything a President determined was personal papers was outside the statute. So whatever Trump said was personal was personal.

As an aside, the indictment says that on January 20, 2021 at noon Trump ceased to be president and his security clearance and need to know were terminated. Now Smith put this in so he could claim that Trump had no right to possess any of the documents involved. An interesting point that will be litigated but harkens back to my point a little while ago. If the president’s ability to read classified information ceases when he leaves office, why do all the ‘intelligence’ officials keep theirs? If Trump gets back in, terminate their clearances immediately and issue your own EO on classification and straighten out a bunch of the bs.