The Former Guy’s FauxNews interview last night left me pondering a legal dilemma his attorneys must be considering by now… if his defense is going to be that he declassified these documents with his mind, how do you get that question before a jury?
By way of background for the non-legally initiated, in the United States, a jury is typically regarded as the “finder of fact.” There are exceptions, such as for some misdemeanors or where the parties waive trial by jury, but none of those are likely to apply here. Meanwhile, where the facts are undisputed, immaterial, or decided by a jury, the court (i.e., judge) is the “finder of law.”
For a fact to be disputed, there must be a genuine dispute—that is, some evidentiary basis to reach different conclusions on the fact. The relative weight of the evidence is irrelevant at this point. We saw this play out in front of Judge Dearie with respect to the documents bearing classified markings. The government offered evidence that the documents were classified by way of their markings—they were classified on their face—a “prima facie” (initial) showing. TFG’s legal team disputed this, but offered no basis for their contention that the documents may have been declassified. At this stage, any good-faith evidentiary claim would have been sufficient to create a genuine dispute, but they offered none. Thus, Dearie appeared ready, as a matter of law, to conclude that these documents were classified. Note that if a fact is not disputed, the sufficiency of that fact to prove an element of a crime or defense is still a question of law.
A second legal principle applies here as well—the rule against hearsay. In simplified terms, hearsay is testimony regarding (1) an out of court statement that is (2) used to prove the fact of the matter asserted. This is a fairly narrow limitation, particularly because of the second part. Thus, if the defense wanted to prove that TFG declassified the documents, Sean Hannity’s testimony that TFG told him last week he had declassified the documents would be hearsay. However, if he told Hannity that he was assembling the documents in a binder to give to Newsmax, that would not be hearsay as evidence that he did not regard the documents as classified anymore. (It would still be hearsay to prove he was assembling such a binder). There are also exceptions to the rule against hearsay. One exception is a statement against interest by a party opponent. Thus, prosecutors might be able to use a statement by TFG asserting the documents were classified against him. Conversely, TFG’s testimony could try to elicit testimony that the Administrator of the National Archives (as part of the government) said the documents were declassified. Those exceptions can be found here.
So here is my question. Assuming the only place the documents in question were ever declassified was in TFG’s head, how do his attorneys get a jury to consider this?
TFG could take the stand in his own defense. I’m confident the government attorney’s would relish the opportunity to cross examine him. And for this reason, his attorneys will advise him not to take the stand, as is his right not to under the Fifth Amendment.
His attorneys could argue that the mere fact that boxed up the documents and sent them to Mar-a-Lago showed he had done this. But the government would not dispute that he had done this. So whether this fact, if proven, was sufficient to show his state of mind, would still likely be a question of law for the court.
So excluding the possibility of a loose Cannon judge getting the case, or possibly perjured testimony about a standing order on declassification, what else is there?