Much of the initial reaction to the search warrant focused on the Espionage Act, which was cited in the search warrant. Although the title of this 100+ year old law seems to have to do with espionage, it is possible to violate the Espionage Act simply by improperly retaining national defense information and not returning it. not to the United States government when requested. .
This law, along with one of the other laws cited in the search warrant, requires the prosecution to prove “willpower”. In other words, they require the government to prove beyond a reasonable doubt that the defendant intended to break the law. It’s often difficult to keep up with that burden, and one strategy I used as a federal prosecutor was to have officers serve targets of investigations with a notice that what they were doing broke the law. If the target continued to break the law after receiving the notice, we had the evidence we needed.
The DOJ’s repeated requests and demands of Trump and his team served the same purpose. It will be difficult for Trump to claim that he did not realize that the records he kept were national security secrets that rightfully belonged to the government, given that the government repeatedly told him and demanded their return. Additionally, Trump was present when the DOJ traveled to Mar-a-Lago to meet with his attorneys and demand the records.
Despite Trump’s insistence that if the government wanted the records back, “all they had to do was askthe government repeatedly requested the records and Trump refused to return them, giving them only “what he believed they were entitled to.” Although Trump may believe that highly classified defense secrets are his personal property, or that he may be keeping Top Secret documents because he “declassified” them informally without following established procedures, it will be difficult to convince jurors that he had a legitimate reason for keeping such sensitive national security information at his Florida compound.
While Trump has repeatedly evaded criminal responsibility for acts he committed while in office, in part because the position he held provided him with potential defenses, he is no longer president. And unlike other out-of-the-box acts he allegedly committed, such as ordering that the special advocate who investigated him be fired (which his attorney at the White House did not consider), or inciting a mob to attack the Capitol, taking classified documents and concealing them from the government is a regularly charged and easy crime to prove. Government employees are being charged, convicted and sentenced to long prison terms for doing what Trump did.
Trump’s defense seems to be that he “had a standing orderdeclassifying every document he brought home. While I suspect Trump might find aides willing to testify that this is true, I doubt he leaked it to the government during their months of negotiations and a jury is unlikely to find this story persuasive. Even if they did, none of the criminal laws cited by the DOJ in the search warrant require the documents to be classified. Although the DOJ generally makes these charges only where the material has been classified, the underlying materials here are highly classified, including classified top secret and sensitive information, highly sensitive information that can only be viewed in secure government facilities.
But because the government is not required to prove beyond a reasonable doubt that the documents in question were classified, Trump’s “defense” that he declassified the documents would not in itself contradict the assertion of the government that the information was closely held national defense information, as required by law. the statuses.
Trump’s best defense would probably be that he didn’t really knows that classified documents remained at Mar-a-Lago, because he relied on his assistants and lawyers, who told him that they had returned all classified documents to the government. The problem for Trump is that it would likely amount to waiving attorney-client privilege between himself and the attorneys he is pointing the finger at, and it’s unclear whether any of them would be willing to take responsibility for him.
Obviously, the underlying evidence against Trump is not yet public, but even based on the limited information we have, it appears the DOJ has viable charges against him. This does not mean that they will bring them. The primary purpose of the search warrant was likely the recovery of classified material, and the DOJ may not go further.
I wouldn’t be surprised if the DOJ declines to pursue charges, no matter how strong, absent a “plus factor” like obstruction. But that factor may be present here, given recent reports that one of Trump’s lawyers signed a written statement falsely claiming that “all documents marked as classified” had been returned to the government. This lie may be the reason an obstruction law was included in the search warrant executed at Trump’s residence.
This misrepresentation creates potential liability for the attorney, as lying to the federal government is a crime if done knowingly and willfully. The DOJ could investigate this attorney, who could claim she relied on Trump’s misrepresentations or — if she lied on her own — potentially turn against him. If the DOJ can establish that Trump was personally behind the efforts to obstruct their investigation, they could very well indict him.
Otherwise, this could be one of the strongest cases the DOJ refuses to present.