Trump Is Charged with Breaking a Law That May Itself Be Unconstitutional

Most readers have heard a lot about the criminal charges that have been leveled against Donald Trump and the additional wave of charges on the way.

Trump has been indicted by a Manhattan grand jury on charges of fraudulent violation of books and recordkeeping statutes by not reporting campaign contributions in kind during his 2016 presidential campaign. These charges are so thin and weakly constructed that even Trump’s enemies who are lawyers believe there’s no there, there.

The original acts are outside the statute of limitations and the campaign finance laws in question are civil, not criminal. To bootstrap the book and recordkeeping charge (which can be criminal depending on the facts and the necessary intent or what lawyers call mens rea) on something that is non-criminal and outside the statute of limitations is unprecedented and unsubstantiated.

It is likely to be treated as such by an appeals court even if Trump is convicted, which is unlikely. The recent federal felony charges related to Trump’s handling of classified information are more serious but also open to considerable doubt. (As an aside, Trump may face further charges under Georgia law for interfering with the vote count there in 2020, and under federal law in connection with the January 6, 2021, disturbances at the U.S. Capitol. This is a multi-pronged effort to make sure Trump can never run for president again).

There are numerous legal issues in the recent federal charges including whether Trump declassified the documents while still president (which could make the mishandling of classified documents issue disappear), and whether certain statements by Trump were mere braggadocio rather than evidence of criminal intent.

The most interesting legal issues arise from the way the charges were framed by the U.S. Attorney. The charges scarcely refer to the Presidential Records Act, which would seem to be directly applicable. Instead, they refer to alleged violations of the Espionage Act of 1917.

This was a law signed by Woodrow Wilson during World War I. It is not limited to passing information to enemies of the United States but covers a wide range of actions that might otherwise be regarded as simple exercises in free speech.

No one alleges that Trump passed any secrets to the Russians or anyone else (unlike Biden who reportedly did favors for China and Ukraine using his son Hunter as a bag man). Instead, the more obscure provisions of the Espionage Act that are of doubtful legality are being used despite the lack of espionage as it is commonly understood. We’ll see where the trial goes.

Still, one possible outcome is that the indictment itself will be challenged as unconstitutional with that issue going to the U.S. Supreme Court before a criminal trial is even completed. In that case, the Supreme Court may declare the Espionage Act unconstitutional and throw out the case.

We cannot predict that outcome with certainty, but we cannot rule it out. Trump’s lawyers will certainly try that route. It’s one more uncertainty and even absurdity of a sitting president using his Department of Justice to put a former president behind bars. American becomes more like a third-world country by the day.

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