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I’m not a lawyer, BUT… Part 2

A Facebook friend recommended I listen to a recent Hugh Hewitt podcast, on which both Marco Rubio and famed Conservative laywyer Andrew McCarthy react to the indictment of Trump by special counsel Jack Smith in the stolen documents case.

Now that I’ve had a chance to listen to the Hewitt interview….

First: Marco Rubio. He doesn’t bring any real insight to the table here. And, on a sidebar… Has Marco Rubio never heard of what has gone on during “Crossing The Line” ceremonies? My Dad, who was a merchant marine working for the Navy, showed some pics of some of the things that went on during the celebration for those crossing the equator for the first time. The pics he showed us were pretty raunchy, and he made it clear there were things he was nOT gonna show his kids. I’m quite sure some of my friend who were in the military have stories.

Second: McCarthy was totally playing defense lawyer here. He left out a few crucial details when comparing Trumps document situation. It’s lying by omission:

The concept of “spillage”. McCarthy doesn’t mention it.

Those in the highest positions of power, President, VP, heads of cabinet positions, are always on duty. They are never really done for the day as it were (which is why I don’t get worked up over golf trips or whatever – they never have time off). They take their work with them. Though they are required to keep track of all paperwork, things do get separated.

Spillage.

Typically it’s less sensitive docs, docs that contain some classified material, but are not in folders marked TOP SECRET or similar docs. From what I’ve gathered both the Pence and Biden classified materials were of that nature.

But, they did have the doc, which is against the law….

Which brings us to the next omission:

The Presidential Records Act. Both McCarthy and Hewitt mention it, but they don’t ever give the explanation of the law:

*Establishes public ownership of all Presidential records and defines the term Presidential records.

*Requires that Vice-Presidential records be treated in the same way as Presidential records.

*Places the responsibility for the custody and management of incumbent Presidential records with the President.

*Requires that the President and his staff take all practical steps to file personal records separately from Presidential records.

*Allows the incumbent President to dispose of records that no longer have administrative, historical, informational, or evidentiary value, once the views of the Archivist of the United States on the proposed disposal have been obtained in writing.

*Establishes in law that any incumbent Presidential records (whether textual or electronic) held on courtesy storage by the Archivist remain in the exclusive legal custody of the President and that any request or order for access to such records must be made to the President, not NARA.

*Establishes that Presidential records automatically transfer into the legal custody of the Archivist as soon as the President leaves office.

*Establishes a process by which the President may restrict and the public may obtain access to these records after the President leaves office; specifically, the PRA allows for public access to Presidential records through the Freedom of Information Act (FOIA) beginning five years after the end of the Administration, but allows the President to invoke as many as six specific restrictions to public access for up to twelve years.

Codifies the process by which former and incumbent Presidents conduct reviews for executive privilege prior to public release of records by NARA (which had formerly been governed by Executive order 13489).

Whenever a Trump defender brings up the “what about _______, he / she didn’t get charged, there is a reason why. For both Pence and Hillary, it is clear they followed the proper procedure at the end of their respective tenure in office; it can be demonstrated they did things by the book as much as possible….

But some spillage did occur in both instances. The law, as enforced, gives some leeway for spillage, which is why, at the end of the day, the Trump Dept of Justice under both Jeff Sessions and Bill Barr did not prosecute Hillary. If you recall, when the Republican Congress was investigating Hillary, they got access to 60,000 emails from the State Department. She followed procedure. The 30,000 that got deleted had been approved by State as being personal email, which is allowed to be retained by according to law. The FBI recovered the emails, and found only a few to have any classified material…

Again… spillage.

In this regard, Comey, for all his faults, was correct, the DoJ would have lost the case.

**Note: I haven’t mentioned Biden because that case is still under investigation.**

Here’s the most interesting omission that makes the case for everything I’ve typed above. Jack Smith is prosecuting former President Trump for a lot of things, BUT, not among them are the first batch of documents the former President turned in a year after the DoJ and NARA notified them that a lot of national defense documents were not accounted for.

If Donald Trump would have given everything he had back, and demonstrated good faith in the endeavor, he would, like Pence and Hillary, not have been charge. The reason he got indicted is because, unlike Pence and Hillary he showed intent to keep the documents and continued to actively flout the law, the DoJ, FBI, and NARA.

So yeah. McCarthy is an excellent lawyer… And he’s doing a ton of lawyering here on behalf of team Trump. But Trump is NOT being charge with violating the Presidential Record Act, which he knows. So yeah, he’s lying by omission.

PS: One of the reasons I stopped listening to most Conservative media is because they thrive on lying by omission. Rush was a master at it. I also don’t listen to a lot of liberal media either for the same reason. But on a scale of 1 to 10, conservative media has always been much worse… Like… $787 million dollars worse.

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How did I do Rich Merritt????