OPINION: This article may contain commentary which reflects the author's opinion.
A weekend analysis of a hearing held last week involving special counsel Jack Smith’s charges against former President Donald Trump over his possession of classified documents says the case took an interesting turn, with U.S. District Judge Aileen Cannon potentially looking at dismissing it on an “arbitrary enforcement” principle.
Writing in her “Declassified” substack, investigative journalist Julie Kelly, who has been reporting on Trump’s classified documents case throughout, said, “Cannon noted the selective prosecution of [Trump] for keeping national defense papers the same week Special Counsel Robert Hur publicly defended his decision not to charge Joe Biden” for a similar, if not the same, crime under the Espionage Act.
“Many words, terms, and definitions were tossed about during a nearly four-hour court hearing last Thursday related to Donald Trump’s alleged mishandling of national security records; lawyers representing the former president sparred with federal prosecutors representing Special Counsel Jack Smith over the language in the Espionage Act, which represents 32 counts in Smith’s sprawling criminal indictment against Trump and two co-defendants in the southern district of Florida,” she wrote.
“But one word not in the indictment nonetheless best demonstrated what the defense and U.S. District Court Judge Aileen Cannon, the Trump appointee overseeing the case, consider the ‘arbitrary enforcement’ of the law: ghostwriter,” she added.
Kelly explained that during the court proceeding on March 14 in Fort Pierce, Florida, where two defense motions asking Cannon to dismiss the case were being debated, Jay Bratt, Smith’s lead prosecutor, recounted an alleged incident at Trump’s office in Bedminster, New Jersey, in July 2021.
Bratt recounted how Trump allegedly displayed top-secret military plans to several individuals during a meeting to discuss an upcoming book on Mark Meadows, Trump’s former chief of staff. Bratt mentioned that among those present was Meadows’ “ghostwriter.”
This statement by Judge Chutkan in her landmark ruling denying Trump exec privilege protections from House Democrats J6 committee alone should be disqualifying.
There is no way she can objectively oversee Jack Smith's J6 case against Trump. pic.twitter.com/VDIbIQnyJ5
— Julie Kelly 🇺🇸 (@julie_kelly2) August 6, 2023
“Bratt and his team probably regretted the reference. Just 48 hours earlier, former Special Counsel Robert Hur, appointed to investigate Joe Biden’s hoarding of classified records at numerous locations over a period of years, defended his decision not to charge Biden or his ghostwriter for similar offenses,” Kelly wrote.
During testimony before the House Judiciary Committee on March 12, the investigative journalist noted in her substack that Hur faced criticism from both Republicans and Democrats regarding the content of his report. The report criticized Biden’s declining mental faculties and raised questions about charging decisions for both Biden and his ghostwriter, Mark Zwonitzer.
Hur’s investigation concluded that Zwonitzer, the author of Biden’s book “Promise Me, Dad,” deleted recordings of Biden that demonstrated his awareness of possessing classified files—recordings the ghostwriter destroyed after Hur’s appointment was announced, she wrote, explaining:
The recordings, Hur concluded, had “significant evidentiary value.” Among the deleted audio files was a February 2017 interview when Biden told Zwonitzer he “just found all the classified stuff downstairs,” referring to top secret files related to the war in Afghanistan and a 2009 memo Biden wrote to President Obama about his opposition to troop surges in the region.
“The practices of retaining classified material in unsecured locations and reading classified material to one’s ghostwriter present serious risks to national security, given the vulnerability of extraordinarily sensitive information to loss or compromise by America’s adversaries,” Hur concluded in his 388-page report. “The Department routinely highlights such risks when pursuing classified mishandling prosecutions.”
However, as Kelly noted, Hur refused to bring any charges against Biden or Zwonitzer, even though their conduct is much more “egregious” than that of Trump.
As Biden escapes legal repercussions because Hur ultimately determined that a jury would not convict a “sympathetic, well-meaning elderly man with a poor memory,” despite uncovering evidence that Biden “willfully retained and disclosed classified materials after his vice presidency,” including national defense information, Trump has already spent two days this month in a federal courtroom in southern Florida.
There, he faces 40 criminal counts for violating the Espionage Act, obstructing justice, and attempting to destroy evidence, Kelly wrote.
Additionally, she points out that while the same FBI treated Biden with kid gloves, nearly two dozen FBI agents raided Trump’s Mar-a-Lago residence.
“The brazen hypocrisy is not lost on Team Trump or Judge Cannon, as Hur represented the elephant in the room during the March 14 hearing,” Kelly wrote, adding:
Cannon repeatedly asked both sides for examples of criminal prosecution for “other officials who did the same.” She questioned the “arbitrary enforcement” of the espionage statute, forcing the government to admit that no other former president or vice president has faced criminal prosecution for keeping similar documents and failing to return them.
“Cannon soon is expected to announce a new trial date in southern Florida; jury selection could begin soon if Cannon sets a trial date for late summer as Americans prepare to vote in the 2024 presidential election—unless Cannon takes the rare and bold move of dismissing the case on Trump’s selective prosecution motion,” Kelly concludes, adding: “Given her comments last week, no one should be surprised if she does exactly that.”
