In my Nov. 15 article, United States v. Donald J. Trump: The Trial of a National Security Case, I explained why I believed that Donald Trump would be indicted for violating the Espionage Act and why I believed prosecutors would find it difficult to use the Classified Information Procedures Act to prevent Trump’s lawyers from making use of classified information in his defense. In this article, I address what offenses Trump is likely to be charged with, and why the government may fail to convict Trump for any of these offenses.
1. Prosecution for removing documents related to the national defense when Trump left the White House
Just what crimes will Trump be charged with? Three statutes were listed on the search warrant authorizing the search of Mar-a-Lago: 18 U.S.C. §§ 793, 1519, and 2071. The first offense is the Espionage Act: 18 U.S.C. § 793. The Espionage Act describes six ways that a violation of the act can be committed, sections (a)-(f). In my prior article, I stated that Trump would most likely be charged with violating section (f). In fact, he will be charged with violating section (e). That paragraph states:
(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or
Shall be fined under this title or imprisoned not more than ten years, or both.
There are two features of this statute that should be noted. First, it is not limited to classic spying. According to the U.S. Court of Military Appeals, “it is clear that Congress intended to create a hierarchy of offenses against national security, ranging from ‘classic spying’ to merely losing classified materials through gross negligence.” United States v. McGuinness, 35 M.J. 149, 153 (C.M.A. 1992). Thus, one may commit this offense without providing or intending to provide secret documents to a foreign power. Second, it is not limited to classified documents; it applies to anything related to the national defense.
In my previous article, I addressed some of the evidence that demonstrates that Trump intentionally removed government documents from the White House. In addition to the 15 boxes of documents that were returned from Mar-a-Lago to the National Archives (which contained classified information), the file of classified documents produced in response to a grand jury subpoena, and the treasure trove of classified documents found during the search of Mar-a-Lago, it is likely that the government will seek to introduce the testimony of two lawyers related to Trump. The first is the lawyer who met with FBI agents and told them that there were no more documents responsive to the grand jury subpoena, which was false, and the second is the lawyer who had been involved in the initial return of the 15 boxes of documents to the National Archives whom Trump unsuccessfully tried to convince to tell the government that a thorough search had been done and that there were no other classified documents being kept at Mar-a-Lago. While this at first may appear to be overwhelming evidence, it is not.
Although Trump has claimed that he declassified all the documents he possessed, that is a red herring; even if he followed correct procedures to declassify documents, that is not a defense to a violation of the Espionage Act. This is because the Act applies to any documents “relating to the national defense,” classified or not. Ironically, if the statute applied only to classified information, this would be an easier prosecution for the government, since there appears to be no evidence that Trump followed standard procedures as to the particular documents he produced voluntarily or the government discovered during the search at Mar-a-Lago.
Despite Trump’s public statements, his lawyers could argue that the documents Trump removed from the White House were not related to the national defense. Since the term “national defense” is undefined in the statute, it can mean anything. This will put the government in the difficult position of demonstrating to the jury why a particular document was related to the national defense. No matter how broadly the courts have interpreted this language in the course of upholding convictions, this will be a question for the jury. See United States v. Gaudin, 515 U.S. 506, 512 (1995) (elements, even those involving a mixed question of law and fact, must be determined by the jury).
This presents a real challenge for the prosecutors. The government has the burden of proving every element of an offense beyond a reasonable doubt. Patterson v. New York, 432 U.S. 197, 210 (1977). This means that the prosecutors must show that a particular document removed from the government’s possession was related to the national defense. As to those documents that remain classified, under the Classified Information Procedures Act (CIPA), the government will be permitted to present a document with any sensitive material redacted or a substitution that provides the substance of the information contained in the document. CIPA Sec. 6. The defense, however, has a constitutional right guaranteed by the Sixth Amendment to confront that evidence. What if defense counsel seek to offer expert testimony or simply argue that the document in question was not related to the national defense. It may well be that the proof of the defense is contained in the material that was redacted or concealed by a substitution. If the court finds that the classified material must be made public, the government’s only recourse is to forgo reliance on Trump’s possession of the document or face a sanction ranging from the court finding that the document is not related to the national defense to dismissal of all charges (having already presented a redacted version or a substitution, these will no longer be alternatives to production).
The government could seek to avoid this problem entirely by not using documents that would jeopardize national security if disclosed during trial, but instead introduce documents that are less sensitive. The problem with this strategy is that the less sensitive the document, the stronger the defense argument that the document in question was not related to the national defense.
At an even more fundamental level, the Espionage Act may be unconstitutional. To violate the statute, the defendant’s access to or possession of the material must be “unauthorized.” Most employees of the federal government must obtain a security clearance to view classified material. This means that their access to classified information must be authorized. But that rule does not apply to the President. The President, by virtue of his office, can see the most highly sensitive documents the government possesses and has the authority to declassify any of them. As to those who have a security clearance, that authority remains with them for a period of time after they leave government service (but not the right to see classified documents if not specifically given access to them). But if persons with security clearances don’t automatically lose their clearance upon leaving the government, why is a former President’s unlimited authority any different? To answer that question, we must first consider what would make Trump’s possession of these documents “unauthorized.”
It can be argued that this term is ambiguous as applied to a former President of the United States. A statute which “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Connally v. General Construction Co., 269 U.S. 385, 391 (1926); Smith v. Goquen, 415 U.S. 566, 572–73 (1974); Parker v. Levy, 417 U.S. 733, 752 (1974).
Trump came into possession of the documents stored at Mar-a-Lago lawfully. He had an absolute right to possess them when he was President. Thus, the government cannot claim that his initial possession of the documents was unauthorized. The government will have to argue that after Trump left the White House, his continued possession of documents became unauthorized. There is some support for this argument. In United States v. McGuinness, 35 M.J. 149, 153 (C.M.A. 1992) the court held that the term “unauthorized” was not void for vagueness where a sailor admitted that he knew he was not authorized to take classified documents home. But the term “unauthorized” as applied to a service member who was not permitted to take classified documents home, may be ambiguous as applied to documents that the government has the burden of demonstrating were related to the national defense. Even if the court denies a motion to declare the statute unconstitutional, the defense can still argue that the jury should find Trump not guilty because having lawfully come into possession of the documents, his continued possession was not a willful violation of law.
2. Prosecution for concealing documents found at Mar-a-Lago
The second offense listed on the search warrant was 18 U.S.C. § 1519. This statute provides:
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
In terms of potential penalty, this is more serious than a violation of the Espionage Act because it carries with it a 20-year sentence. And it seems the easier case to prove because arguably documents were concealed at Mar-a-Lago and Trump’s conduct seems to suggest a willful effort to obstruct the proper administration of the National Archives and Records Administration. Ah, but not so fast.
Only one case has addressed what the word “conceal” means. In United States v. Katakis, 800 F.3d 1017, 1030 (9th Cir. 2015), the Ninth Circuit found that:
“Conceal” means “to prevent disclosure or recognition of; avoid revelation of; refrain from revealing recognition of; draw attention from; treat so as to be unnoticed; to place out of sight; withdraw from being observed; shield from vision or notice.” Webster’s Third New International Dictionary (1993).
Actual concealment must do more than merely inconvenience a reasonable investigator—there must be some likelihood that the item will not be found. Here the government had no difficulty locating the documents at Mar-a-Lago. Nothing had been shredded, nothing locked up or hidden away.
The National Archives received 15 boxes of documents from Trump at Mar-a-Lago and the FBI persuaded the magistrate to issue a search warrant for Mar-a-Lago based on probable cause that documents relating to the national defense would be found there. To paraphrase Katakis, there was no likelihood that these documents would not be found.
Since moving the documents from the White House to Mar-a-Lago and storing the documents in Trump’s office and residence at Mar-a-Lago are not alone sufficient to demonstrate concealment, the government may try to rely upon the certificate signed by the custodian of records and the statement of the attorney for Trump when they produced documents in response to a grand jury subpoena. The custodian of records signed a certificate that said:
Based upon the information that has been provided to me, I am authorized to certify, on behalf of the Office of Donald J. Trump, the following: a. A diligent search was conducted of the boxes that were moved from the White House to Florida; b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena; c. Any and all responsive documents accompany this certification; and d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.
I swear or affirm that the above statements are true and correct to the best of my knowledge.
At the same time, one of Trump’s lawyers told the FBI agents sent to retrieve these documents: (1) that all of the records taken from the White House were kept in the storage room; (2) that no documents were stored anywhere else in the residence; and (3) that all the boxes had been searched. Finally, the Washington Post reported that former Trump Attorney Alex Cannon, who had been involved in the return of 15 boxes of documents originally requested by the National Archives, refused Trump’s request to tell the National Archives that all the documents they had requested were returned because he was unsure if that was true.
It is reasonable to assume that the custodian of records, the lawyer who was present when the custodian of records produced documents responsive to the grand jury subpoena, and Alex Cannon are all cooperating with the government. But what can they say? Files were searched, records were produced. The only way the government could make a case on their testimony is if Trump himself ordered each of these individuals to lie about what was searched and the location of the documents. From what Cannon told the Washington Post, there is no indication that Trump directed him to lie. As to the custodian of records, the custodian only certified what he or she understood to be the case. As to the lawyer who accompanied the custodian, it will not be easy to obtain his or her cooperation unless the lawyer is given immunity; a plea to making a false statement to the FBI would likely result in the lawyer losing their license to practice law. Thus, the only one of the three who is likely to be a government witness is the currently unknown lawyer who was present when the documents were produced and made representations regarding where the documents were located. But the lawyer’s liability is so clear and his plea so generous, defense counsel will shred the lawyer’s credibility. The government will have difficulty convincing the jury to convict the former President of the United States based on the testimony of a single suspect witness.
3. Can Donald Trump take something away from himself?
18 U.S.C. § 2071 states:
(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.
(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.
There are three ways Trump’s conduct might be viewed as violating Part (a) of this statute: by concealing material, removing it, or taking and carrying it away. As to concealment, it suffers from the same infirmity found in 18 U.S.C. § 1519; concealing requires more than just moving something from one place to another if the object can still be found. Removal is even more ambiguous than the term “unauthorized” and thus suffers from the same constitutional infirmity discussed earlier. If it is not deemed ambiguous, it must mean the same thing as taking and carrying away. As to the third way of violating the statute, the most natural reading of to take and carry away is that the defendant must take something away from someone else or some other location. But Trump was in lawful possession of the documents that he supposedly took and carried away. Plainly, one cannot take and carry away something from one’s own lawful possession. Nor is it likely that Congress envisioned such an absurd interpretation.
Similarly, although section (b) makes it a crime for anyone who “conceals, removes, mutilates, obliterates, falsifies, or destroys,” a “map, book, document, paper, or other thing,” this only applies to someone “having the custody of such record.” But having custody does not alter the fact that this provision requires one to either conceal, which we have seen requires more than taking the documents to another location; remove, which can mean anything or nothing different than carrying and taking away; or take and carry away, which cannot be criminal since the documents were in Trump’s lawful possession.
4. What does this all mean
From everything that is known about Attorney General Merrick Garland, he will not be deterred from prosecuting Trump by the hurdles identified herein if he believes that Donald Trump broke the law and that there is sufficient evidence from which a jury could convict. From what has been publicly disclosed about the evidence the government possesses, it seems very likely that in the next few months, former President Donald J. Trump will be indicted for removing documents from the White House and concealing them at Mar-a-Lago. That much is certain. But as we have seen, a conviction under the statutes being contemplated is far from certain.