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DOJ Scrambles to Find Non-Existent Evidence of 'Intent'

The opinions expressed by columnists are their own and do not necessarily represent the views of
Susan Walsh/AP Photo

Under pressure from President Biden to find a way to prevent Donald Trump from becoming America’s 47th President of the United States, Attorney General Merrick Garland unleashed an army of FBI agents to scour Mar-a-Lago in search of something, anything that might fill in the enormous gap in DOJ’s case against the former president: The glaring absence of evidence of specific intent needed to bring any charge against former President Trump.  


While DOJ can snow a grand jury into believing lame evidence credible and succeed in indicting just about anyone (not difficult when the prosecution runs the show unopposed), it cannot be sure of a conviction from a court without evidence beyond a reasonable doubt of the specific intent necessary to prove its case. That evidence rarely exists and proof of it is, indeed, a very tall order. Short of planting evidence or making things up (in other words committing the kind of government corruption and fraud as occurred in the deceitful manipulation of evidence by DOJ and FBI in support of the Russia hoax or, more recently, in the FBI fabricated Whitmer kidnapping plot), DOJ is destined to hit a very high, virtually impenetrable burden of proof that will dash its partisan dreams to pieces.

From the warrant released by Magistrate Judge Bruce Reinhardt on August 12, we see in attachment B the legal predicate offered by Justice for the search: 18 USC §§ 793, 1519, and 2071. For want of evidence, each statutory section fails in Trump’s case when evaluated fairly, and never should have been accepted as adequate justification under the Fourth Amendment for the unprecedented issuance of the warrant against a former President on the eve of his announcement of a second candidacy for that office. That want of evidence, of course, did not stop DOJ because the entire unprecedented pursuit is one driven by political motivations, not objectivity.  DOJ is not investigating a crime for which it has probable cause; it is trying to discover fragments of proof that can be woven into a tale of criminality to, at a minimum, place a cloud over candidate Trump’s head or, in their ideal scenario, justify preventing him from becoming the 47th President of the United States.


Section 793 is a section of the Espionage Act which prohibits removal and misuse of defense information when done by one “with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.” DOJ scoured Mar-a-Lago through use of an ex parte warrant in a desperate attempt to find some scrap of evidence to shore up an otherwise inadequate case under this section. This now explains why they even went to the extreme of going through Melania’s dresses and the Trump bedroom. The aim was to find something, anything to support an “intent or reason to believe that . . . information is to be used to the injury of the United States, or to the advantage of any foreign nation.” DOJ was engaged in a massive KGB-style fishing expedition, angling to find fragments that could be woven together through a mighty stretch to make out an Espionage case against former President Trump (it's Russia, Russia, Russia all over again). 

They are struggling at this very moment to come up with some kind of plausible story line suggestive of the needed criminal intent, a story line of fiction detached from reality. Make out Trump to be a spy for a foreign power or to be endeavoring to harm the United States and you will obtain an indictment, but winning a trial on the merits, where all relevant countervailing evidence (not just the DOJ story line) is before a judge and jury, and conviction appears an illusory goal. Obtaining a conviction for a specific intent crime is an extremely difficult mountain to climb in the absence of a confession or direct and irrefutable testimony and a case, to quote the discredited former FBI Director James Comey, no reasonable prosecutor would bring.


Section 1519 likewise requires DOJ to prove specific intent. It must show from direct evidence or testimony that Donald Trump intentionally endeavored to impede or obstruct an investigation by covering up or destroying records. The section reads: “Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or . . . in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.” Proving a violation of this section is all but impossible in the absence of direct evidence or a confession of specific intent. Who but a far-left lunatic thinks a conviction under this section likely against the former President?

Section 2071 does not even apply to the President of the United States. This section applies to documents that are “filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States.” The documents at issue were not ones filed or deposited with the Office of the President under the plain meaning of the section. They were documents reviewed and used by the President in the development of executive decision-making under his Article II authority. But even if we omit that bar to prosecution, and the legislative history which makes it plain that the section was not intended to apply to the President, we have again the extraordinary burden of proving specific intent. The section requires proof that Trump “willfully” concealed, removed, mutilated, obliterated, or destroyed, or attempted to destroy a protected document. Despite its facial inapplicability, section 2071 is the one DOJ is determined to apply to the President, however, because the section includes within it the political end-game: Violation carries with it not only the potential for imprisonment for up to three years but also disqualification “from holding any office under the United States.”  


In the end, remember DOJ never made Hillary Clinton account for the overwhelming proof of her violation of the Espionage Act through her willful transfer of classified emails from the state department to her private server, her destruction of mass quantities of that evidence during the course of the FBI investigation (bleach bit software and hammers), and her overt obstruction of FBI’s investigation into that evidence. Compared to the mountain of evidence DOJ had on Hillary and did nothing, DOJ has nothing at all on Trump. Comey announced to a shocked legal world in flagrant disregard of the proof that would undo Clinton that “although there is evidence of potential violations regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.” And then there is oh so much evidence of criminality by Hunter Biden and of violation of the Foreign Emoluments Clause of the Constitution by President Biden (indeed direct evidence of complicity with foreign powers to the personal financial advantage of the Biden family through a multi-year, multi-million-dollar influence peddling scheme with America’s greatest enemies), but DOJ does nothing; indeed appears to have buried the evidence (where is the Hunter lap top FBI seized?).

American justice is not whatever those in power proclaim it to be in service of one political party. That form of justice can be had in any of a number of tyrannical states worldwide, Putin’s, Xi Jinping’s, Jong-un’s, Khamenei’s, Diaz-Canel’s, or Maduro’s, but it is the opposite of equal justice under law at the root of American jurisprudence, where an objective rule of law applies to all. While Attorney General Merrick Garland gives lip service to equal justice, he epitomizes through his actions the politicization of justice, zealously going after party opponents for whom evidence is lacking while taking no action whatsoever against Democrats for whom evidence of criminality is manifest. Impeachment of Garland is not an option if we are to restore the rule of law and blind justice; it is a necessity.


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