and a civil process for resolving disputes about them. It doesn’t carry criminal penalties for non- compliance. Remarkably, the indictment
never mentions the Presidential Records Act, despite its appar- ent relevance to any possible prosecution under the Espio- nage Act of 1917. The indictment quotes tape-
recorded conversations that form the basis for several charg- es under the Espionage Act. The critical recording is of a conver- sation between Trump, a writer, a publisher, and two Trump staffers, who were discussing a claim that a senior military of- ficial had persuaded Trump not to order an attack on “country A,” which in context is surely Iran. Trump points to some papers
he found and tells his guests they prove that military offi- cials supported an attack. “This totally wins my case,” he says. “This is secret information. Look, look at this.” Trump then says: “See, as
president I could have declassi- fied it . . . Now I can’t, you know, but this is still a secret.” It is possible that Trump merely waved the papers in front
of his guests and never gave them an opportunity to read them, which is apparently not in evi- dence because the prosecutors don’t have the document. But even those hypothetical
facts would be enough to sup- port the charge of willfully pos- sessing classified material in an unauthorized manner. The reason this recording is
so powerful is that it is self-prov- ing. It doesn’t rely on testimony by flipped witnesses or antago- nists of Trump. It is the kind of evidence every defense lawyer dreads and every prosecutor dreams about. This is particularly impor-
tant because an appellate court could find legal error in the rul- ing that Trump had vitiated attorney-client confidentiality and reverse convictions based on his lawyers’ compelled testi- mony. A conviction that rests on a consensually recorded conver- sation would be harder to chal- lenge.
Smith has made a stronger
case against Trump than many observers, including me, ex- pected. The question remains: Is it strong enough to justify an indictment of the leading candi-
Greta Van Susteren Says: Politics Has No Place in Courtroom
is serious. Alleging that Trump improperly possessed classi- fied documents is serious. In our system, no one is
M
above the law. But our justice system obligates us to wait for all the evidence to be heard be- fore we render a verdict.
54 NEWSMAX | AUGUST 2023
ake no mistake: the 37-count indictment against Donald Trump
The Trump case has raised
another important aspect of our judicial system: prosecuto- rial discretion. Just because a prosecutor can indict doesn’t mean that a prosecutor should indict. Prosecutors wield enormous
personal power in making that decision. There are no hard- and-fast rules.
date to challenge the president in next year’s election? Even with the recorded state-
ments, this case isn’t nearly as strong as the one that led to President Richard Nixon’s res- ignation in 1974. Nixon was al- most certainly guilty of destroy- ing evidence, bribing witnesses, and other acts of obstruction. Many of the charges in this
case are matters of degree. Nor have prosecutors any evidence that Trump’s actions damaged national security more than those of Biden, Pence, and Clin- ton did. When an incumbent admin-
istration prosecutes the leading candidate against the presi- dent, it should have a case that is so compelling it attracts the kind of bipartisan support that forced Nixon to resign. No such support is currently
apparent, since many Republi- cans continue to be troubled by the targeting of Trump. Smith will have to convince not only a Miami jury but the American public, on both sides of the par- tisan divide.
Alan Dershowitz is a professor emeritus at Harvard Law School. He represented Donald Trump during his 2020 impeachment trial.
Rather, the decision to pur-
sue an indictment hinges on the individual prosecutor’s ex- ercise of good judgment and fairness. Because, while no one is above the law, the other cor- nerstone of our justice system is equal treatment under the law.
And this is where our justice
system appears to be very se- lective when it comes to how it handles top officials in posses- sion of classified information. Consider for a moment that
many high-ranking public of- ficials have been accused of
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