Will Scharf is a former federal prosecutor a Republican candidate for Missouri Attorney General; take that last part as you will. In a piec for The Federalist, he ticks off six problems for prosecutors trying to prove the alleged crimes in the Justice Department’s case against Donald Trump. Few of them have been explained thoroughly in the mainstrem media by an analyst not obviously inclined to declare Trump guilty, at least none that I have found.

Here are Scharf’s six; my few comments are in italics:

1. Interplay Between the Espionage Act and the Presidential Records Act: “…The Presidential Records Act sets up a system where the president designates all records that he creates either as presidential or personal records (44 U.S.C. § 2203(b)). A former president is supposed to turn over his presidential records to the National Archives and Records Administration (NARA), and he has the right to keep his personal records.  Based on the documents I’ve read and his actions I’ve read about, I believe Trump viewed his “boxes” as his personal records under the PRA. There are statements he made, quoted in the indictment, that support that view. If Trump considered the contents of these boxes to be of purely personal interest, hence his designation of them as personal records, did he knowingly retain National Defebse Information? Did he really think these documents, like years-old briefing notes and random maps, jumbled together with his letters, news clippings, scribbled notes, and random miscellaneous items, “could be used to the injury of the United States”? Or did he just think of them as mementos of his time in office, his personal records of the four years, akin to a journal or diary?”

2. Classification and National Defense Information: “…Trump’s legal team needs to drive home this point over and over again: Classification is not dispositive in this case. Harm to America or benefit to foreign countries is the standard.  Anyone who has worked around government knows that overclassification is a huge problem. A ton of documents end up being classified because of arcane technical rules that may not reflect the real world. If the president were to ask the Navy what’s for lunch for the next week at Coronado, for example, there is a good chance the answer comes back with a classification marker on it.”

3. Walt Nauta and DOJ Misconduct: “Not surprisingly, the corporate media have mostly buried this one. [Co-defendant Will]Nauta’s lawyer, Stanley Woodward, alleged in a court filing that during a meeting with prosecutors about his client’s case, the head of the Counterintelligence Section of DOJ’s National Security Division Jay Bratt ‘suggested Woodward’s judicial application [for a DC Superior Court judgeship] might be considered more favorably if he and his client cooperated against Trump.’ If true, and I find it hard to believe that Woodward just made the whole thing up, this is wild misconduct….It could undermine the entire case against both Trump and Nauta. It could end careers at DOJ if fairly investigated.”

Cowabunga!

4. Attorney Client Privelege: “The indictment relies on a significant amount of information received, in one form or another, from one of Trump’s lawyers, Evan Corcoran, who was compelled to testify in front of the grand jury… The attorney-client privilege protects from disclosure to the government confidential communications made between clients and their attorneys. …The crime-fraud exception, though, allows the attorney-client privilege to be broken in rare circumstances when two requirements are met: First, there needs to be a prima facie showing that the client was engaged in criminal conduct. Second, the client has to have obtained or sought the attorney’s assistance in furthering that crime. I have not seen DOJ’s filings on Corcoran, but I would be interested to know how they argued this….the special counsel is going to have to show why the communications in question were a solicitation by Trump to Corcoran to join him in criminal acts, as opposed to Trump asking a lawyer he hired to advise him on his legal defense, to tell him what his options were, or to outline what defensive steps might be possible, and what was done by others in previous cases like Hillary Clinton’s emails. Reading the conversations in the indictment, they sound a lot more like honest attorney-client communications than they do crime fraud to me…”

And to me as well, and Will and I are not alone in this.

5. Timing: Why Now?: This is Scharf’s whole comment on this one, and it is the most damning:

This is not a legal defect in the indictment, but it is an important point nonetheless. Why are they bringing this case now?

They know Trump is the leading candidate for president. They know he is beating Biden in the polls. They must know how bad it looks for a sitting president’s DOJ to indict that president’s primary political opponent.

DOJ has long had policies in place to prevent new indictments from being brought, or overt investigative acts being committed, in the months preceding an election in order to avoid the appearance of political timing. The same reasoning clearly applies here.

The special counsel’s team did not have a statute of limitations issue, they could have easily just announced the facts as they saw them after the search warrant was executed and all the documents were recovered, and then held off on further investigative acts and the indictment until after November 2024.

The fact that they did not follow that course is strong evidence to me that a big part of this is the burning desire among many on the left to “get Trump.” They don’t care about the law. They don’t care about the facts. They don’t care about norms or propriety or anything else. They just want Trump in cuffs.

The fact that our law enforcement and intelligence apparatuses are being weaponized in this way against a leading presidential contender is truly a black mark on them and on our republic.

If I were Trump’s lawyers, I would consider moving to continue further proceedings until after November 2024. Let the case sit. The country doesn’t need to litigate this right now. We need to pick our next president. If DOJ won’t agree to that continuance, let them explain why this has to happen right now. There is no good reason that I can see.

Finally, I haven’t seen this last one before. Everyone has emphasized what a good and fair prosecutor Smith is:

6. Jack Smith: Why Him? “… “The single case [special prosecutor] Jack Smith is most publicly associated with was the prosecution of Virginia Gov. Bob McDonnell. In that case, using a very aggressive interpretation of the scope of federal bribery and honest services fraud statutes, Smith nuked the career and life of a popular Republican politician, before having all his convictions overturned by the Supreme Court in a unanimous opinion …[that] smacked Smith down for an overzealous, legally defective prosecution of a Republican politician, and the opinion was so devastating that DOJ did not even attempt to retry the case…. As has been noted publicly as well, Smith’s wife is a leftist filmmaker who produced a hagiography of Michelle Obama, and he currently lives in the Netherlands. …If this is not a political prosecution, if Merrick Garland wasn’t just trying to “get Trump,” then why was Jack Smith the pick? Like the timing, the decision reeks of politics.”

Ethics Alarms covered the McDonnell case extensively. The popular Virginia governor was an unethical crook who managed to avoid the privisions of the bribery law Snith used to prosecute him. The SCOTUS decision was right. Smith used the process as the punishment, which seems to be what is being done to “get Trump” as well.