Denver attorney Mike Melito, a former Army JAG prosecutor and later an assistant in the Colorado attorney general's office, said on American Family Radio Monday that Trump could simply say he had already declassified certain documents referenced in the 37-count indictment brought by prosecutor Jack Smith.
Biden benefits from 'striking' double standard of justiceChad Groening, AFN.net Now that the public has learned Donald Trump is facing federal charges under The Espionage Act, many see a politicized investigation and a two-tiered justice system that is trying to destroy the Republican presidential candidate. Trump has been summoned to appear in federal court Tuesday after the U.S. Justice Department unveiled a 37-count indictment including charges of willful retention of national defense information, conspiracy to obstruct justice, and false statements. 
Robert Knight, a columnist for The Washington Times, complains Joe Biden appears to be untouchable from similar allegations after classified documents were found in his own home. There are also allegations about money laundering and bribery that permitted millions of dollars to flow to Biden family members from overseas. “The double standard is so striking and so shockingly outrageous,” Knight observes, “that a lot of people are going to rally to Trump’s side.” In fact, the newspaper columnist suspects Democrats know that. Democrats who are pursuing Trump, Knight says, want to anger his die-hard supporters so they stick with him no matter what happens in the courts. “But they're hoping it will damage [Trump] so much,” Knight tells AFN, “he can't win the General Election." 
Gary Bauer similarly predicts Biden will attempt to hide from the public during the presidential race and allow the legal troubles to plague his hated opponent, Trump. That misuse of law and the justice system, he says, was once seen only in Third World countries. “If they continue down this road,” Bauer warns, “they are going to split the country in half with consequences that will make no one happy expect America’s enemies." |
The indictment, unsealed late Friday, includes recorded details from a July 2021 meeting with an unnamed author and publisher about an upcoming book on his time as president. It also includes a transcript in which Trump described to his two guests a "plan of attack" against another country. In the conversation, Trump admitted he had not declassified the documents and that they were still secret.
In his defense, Trump could actually say, "I was just trolling these media people. I actually had declassified it, and I'm not being inconsistent. They just didn't know I was pulling their leg," Melito told show host Jenna Ellis.
Continuing conversation within that clip could leave Trump an out, Melito continued.
"He makes some commentary to another individual saying, 'Hey, you need to keep it at a distance. You can't really read this … this is still classified.' So there's actually a factual defense that arises from that. It's simple, quite frankly. I think a kid could think of it."
Melito said that simple explanation could theoretically upend the first 31 charges.
"What that does is eliminate one of the elements that the government must prove beyond a reasonable doubt by simply pulling those documents out of their prior classification. That theoretically would maintain a certain amount of consistency," the attorney explained.
For the remaining counts of obstructing justice, Trump's team could try to convince the jury that he's being wrongfully prosecuted. There have been numerous cases of former presidents and high-ranking executive branch officials who have been in possession of classified documents – Bill Clinton, Barrack Obama, Joe Biden and Mike Pence to name a few.
"You would draw similarities to other people – Pence, Clinton, Biden, numerous other people – who've willfully maintained classified documentation beyond when they should. The theory by the defense is 'I'm being unfairly persecuted,' and you're effectively going to maintain your attack. You're going to attack things factually, but you're also going to claim this disparate treatment," Melito said.
Basically, if Trump's defense team chooses this path, Melito contends they will need a sympathetic jury to overlook the possibility that something illegal occurred.
"You're trying to convince the jury that, 'Hey, if there was some illegality' this is something that's being prosecuted for the wrong reasons. Then you hope the jury says, 'We're sickened by this behavior. We're sickened by this partisanship of the government, and you're a free man, not guilty.' So that's, that's one approach."
The problem originated with what Melito described as inadvertent admission of guilt. Trump, already having ignored requests to turn over the documents, made statements in media interviews that basically proved his knowledge of wrongdoing.
"It's considered a speaking indictment because it goes into such detail," Melito said. "What we have here is President Trump essentially making prior statements to reporters that demonstrated that he knew the material was not declassified and essentially knowing that he needed to return it to the government. It's not incredibly unusual, but it's certainly not boilerplate."
The distinguishing factor here is Trump's willful disregard for the government's request to return the documents, Melito said. It's an example of what Trump's former attorney general, William Barr, described last week as "risky reckless" behavior.
This is far different from the NY indictment
Melito agrees 100% with Barr.
"This indictment lays out that. He received the subpoena, and then it was from that point moving forward that he was looking for ways to obstruct justice or not hand over the material. The detail in here really goes into some minutiae. It talks about everything from directing the movement of boxes by his personal assistant, about how he deceived his lawyers. He didn't promptly return them when asked, and then also engaged in the scheme to keep them when he shouldn't have," Melito said.
Some Trump supporters have called the latest indictment a "witch hunt," but that phrase seems to be thrown around less now than in March when a New York grand jury indicted Trump on 34 counts mostly related to business fraud. Manhattan District Attorney Alvin Bragg made his pursuit of Trump a centerpiece of his campaign as he reminded voters he had sued Trump and Trump's administration more than a hundred times.
For Bragg (left) it was personal. This is a different landscape, Melito said.
"Alvin Bragg, I think, campaigned on more or less trying to put President Trump in the crosshairs," the attorney shared. "[But in] this particular indictment, the detail is everything from here's videotape showing people moving boxes; here are text messages showing communications; here are prior statements by the president on the campaign trail showing that he had knowledge of having to have a responsibility over such material.
"And then of course, you have the clip that they referenced where President Trump spoke with a reporter and acknowledged the fact that he didn't declassify these in a time period that he otherwise could have and that he should have returned it more or less."
Continuing, Melito argued that Trump's camp has reason to be concerned this time.
"This has some teeth really unlike a lot of indictments I've seen before. It goes into incredible detail. It's not filled with legalese, and it's straightforward and explains where the documents were kept wrongly. It explains how deceit was employed to essentially obstruct justice," he said.
A passionate view against the indictment
As with most things, Trump people take sides with passion. For example, Judicial Watch president Tom Fitton sees blatant dishonesty from the indictment.
"The document dishonestly ignores the U.S. Constitution, the Presidential Records Act, legal precedent and the DOJ's/Archives' previous position that White House records a president takes with him when he leaves are presumptively personal and not subject to review by partisan Biden appointees at DOJ or Archives," Fitton wrote on social media.
He continued: "Under the Constitution, federal law and precedent, none of the documents are currently 'classified' or 'national defense information' that restricts Trump's handling of them. They are ALL his personal records and, frankly, should be returned to him. If justice prevails, this indictment won't survive scrutiny by honest, Constitutionalist judges, and will be thrown out."
Trump will appear in court in Miami on Tuesday, but the case is expected to soon disappear from the public eye while attorneys on each side prepare.
"This is not going to be something that is solved in an instant. It's not going to happen quickly," Melito said. "President Trump has been a fighter throughout his entire business and political career. The evidence is challenging, frightening for any attorney no matter how seasoned. This is not going to be solved in the next few weeks. This is something that's going to happen more than a year out."
