Wednesday 14 June 2023

Ex-U.S. Prosecutor Andrew McCarthy Explains Why Trump’s Presidential Records Act Defense May Not Work

 Former Assistant U.S. Attorney Andrew C. McCarthy disputed claims on Tuesday that former President Donald Trump was allowed to retain the sensitive documents that were recovered from his home because of the Presidential Records Act.

Appearing on Fox News while Trump was being arraigned in a Miami courthouse, McCarthy, who is a staunch conservative, pushed back on claims that the classified material that Trump is accused of improperly retaining were his “personal records.”

“As far as the Presidential Records Act is concerned, I must say, I’m tempted to say that the argument is frivolous,” he said. “What President Trump is accused of hoarding down at Mar-a-Lago is not presidential records. These are agency reports. Their agency reports are not what the Presidential Records Act is directed at, it’s not even clear that they would count as presidential records.”

“But in terms of what he’s allowed to keep as personal records, there’s not a conceivable contention that the information that was down there is covered because what personal records under the Act are is things in the nature of diaries and journals and the like,” he explained. “This doesn’t come close to that, this is agency reporting. And on the Espionage Act, you know, the word ‘espionage’ doesn’t appear in any of the codified provision of the crimes that went into federal law as a result of the Espionage Act.”

McCarthy said that there are “various prongs” in the Espionage Act and that the one prosecutors charged Trump with has nothing to do with spying. It pertains to “government officials, who are trusted with national security information, who hold it in unauthorized circumstances, that is in a place where it doesn’t belong, and who willfully retain it when there was a demand made by the government” to return it because they are not legally allowed to have it.

“So what President Trump is accused of is that part of the Espionage Act,” he said. “It’s irrelevant whether there was an intent to harm the United States or not. That’s not a defense to this charge. What the charge is, is he was unauthorized to have it, he willfully retained it. They demanded to have it back and he refused. That’s the crime.”



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