Former U.S. Attorney says Trump Prosecution "outrageous"

Former Asst. U.S. Attorney Takes Apart Trump Case and Raises Some Important Questions

There’s a Twitter thread from Will Scharf that makes some interesting points that are not being picked up by the media. 6 points on his thread

Scharf is a former Assistant U.S. Attorney who worked on two Supreme Court confirmations and clerked for two federal appellate judges. He’s also running for Missouri Attorney General. Like many, he thought the prosecution against the former president was “outrageous.”

Point #2:
Classification and National Defense Information

I want to reiterate this point because it’s really important:

Just because something is classified—even Top Secret, SCI, NOFORN, FISA, pick your alphabet soup—does not mean that it is National Defense Information (NDI) within the meaning of the Espionage Act.

NDI, for the purposes of an Espionage Act § 793(e) 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.”

A lot of the documents listed in the indictment are older, or seemingly random. Would Trump in 2022 have had reason to know that a 2019 briefing document “related to various foreign countries, with handwritten annotation in black marker” could harm the US or help foreign countries?

Tough to say, because we can’t see the documents, but that’s a question the jury is going to have to decide in the end, and Trump’s legal team needs to drive home this point over and over again:

• Classification is not dispositive in this case.

• Harm to America or benefit to foreign countries is the standard.

Anyone who has worked around government knows that over-classification is a huge problem. A ton of documents end up being classified because of arcane technical rules that may not reflect the real world.

If the president were to ask the Navy what’s for lunch for the next week at Coronado, for example, I’ll bet you the answer comes back with a classification marker on it.

Not everything classified constitutes NDI. Focus on the actual legal standards and statutory language, not a bunch of scary looking all caps acronyms.