I previously wrote about the hurdles facing prosecutors should former President Donald Trump be indicted for unlawfully concealing or removing documents related to national security. In that article, I reviewed in detail the statutes listed on the search warrant authorizing the FBI to search Trump’s residence and office at Mar-a-Lago. But while I addressed the various defenses Trump could raise, I did not dispute the fact that there was a factual basis for contending Trump’s conduct violated the statutes.
To recap from my prior article: One year after Trump left the White House and moved to his residence at Mar-a-Lago in Palm Beach, Florida, the National Archives retrieved 15 boxes of documents from Trump’s residence. Upon reviewing the content of those boxes, the National Archives discovered that there were “a lot of classified records.” Subsequently, a grand jury subpoena was served on Trump demanding the production of any classified documents in his possession or control. In response, an attorney produced a file of classified documents, and a custodian of records signed a statement that these were all the records that Trump had that were responsive to the subpoena. Subsequently, the FBI conducted a search, pursuant to a search warrant, of Trump’s residence and office and discovered over 100 classified documents.
There are reports that the government has found in total of over 300 classified documents possessed or under Trump’s control after he left the White House.
Contrast this with the discovery of national security material possessed by President Joseph Biden when he was vice president and afterwards.
In the case of President Biden, one of Biden’s lawyers found 10 documents at a think tank Biden was associated with after he was no longer vice president and more recently, other lawyers discovered “a small number of classified documents” in a storage room in a garage at one of Biden’s homes in Delaware and additional documents in his personal office at his home.
There are a few obvious differences between the two situations, some significant, some not.
- Biden’s lawyers immediately contacted the National Archives as soon as they discovered the documents at the think tank in September 2022, and immediately notified the Department of Justice when they discovered more documents recently. However, they don’t get full credit for their recent disclosure because they knew that failure to do so would be political suicide given the government’s investigation of Trump and might be relied upon by prosecutors as evidence of unlawful intent.
- Trump only produced classified documents when asked to by the National Archives, then denied possessing more than a small number in response to a grand jury subpoena. Then, when 100 classified documents were found at Mar-a-Lago and in his office, he stated that he had declassified them.
- Both Trump and Biden were aware that keeping classified documents at home violated rules governing the proper storage of such documents.
Now let’s look at what the law says:
Magistrate Judge Bruce Reinhardt found that there was probable cause to believe that evidence of three violations of federal criminal statutes would be found at Mar-a-Lago.
The Espionage Act: 18 U.S.C. § 793 describes six ways that a violation of the act can be committed, sections (a)-(f). The provision that prosecutors would most likely consider is section (e). That provision 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 . . .
Shall be fined under this title or imprisoned not more than ten years, or both.
Both men can argue that their possession of classified documents was not unauthorized when they came into possession of the documents, but as I have discussed in a previous article, there is case law that indicates that their possession became unauthorized when they left office and continued to possess documents related to national security.
The question then becomes, “Did they willfully retain the documents and fail to deliver them to an officer or employee of the United States?” In Biden’s case, it is unlikely that the Special Counsel will find that he did because the documents were voluntarily turned over to the government as soon as they were discovered. So there is no basis to charge Biden with violating this statute. It is a very different story with Trump. In response to the grand jury subpoena, he failed to produce all of the classified documents he possessed and even denied that anymore existed. He also sought to pressure one of his lawyers to falsely tell the government that no other classified information had been found despite a thorough search. The lawyer refused. In these circumstances, it is very likely that the Special Counsel will recommend to Attorney General Merrick Garland, that he authorize charging Trump with violating this statute.
The court also found that there was probable cause to believe that 18 U.S.C. § 1519 was violated. That statute states:
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.
Here again, the Special Counsel will find no basis to charge President Biden because there is no evidence that he had any intent to impede or obstruct the proper administration of any matter within the jurisdiction of any department or agency. That, however, is not the case with Trump. As discussed above, there is evidence of an effort to impede or obstruct the administration of the National Archives.
Although not considered by Judge Reinhardt, there are reports that the Department of Justice in investigating Trump for violating 18 U.S.C. 1503 by impeding or obstructing a federal grand jury.
That statute states in part:
Whoever . . . corruptly . . . obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b)
Again, there is evidence that supports such an allegation against Trump.
The third statute that Judge Reinhardt ruled the government demonstrated probable cause to believe was violated was 18 U.S.C. § 2071. That statute states in part:
(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, 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] 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.
Here there is no evidence of willful concealment by Biden, but arguably, there is sufficient evidence or willful removal. There is sufficient evidence of concealment and removal by Trump.
When deciding whether to charge an individual with a crime, the Justice Manual instructs prosecutors:
9-27.220 – Grounds for commencing or declining prosecution
The attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction . . .
Based on my experience as a former federal prosecutor and years of practicing federal criminal defense, I believe that it is unlikely that the Special Counsel will conclude that “the admissible evidence will probably be sufficient to obtain and sustain a conviction” as to President Biden’s conduct. Unless significantly more documents are found, the number of documents found thus far are more consistent with inadvertence and sloppiness than with any criminal intent. Moreover, the chances are very good that few jurors would convict on this evidence, even if they believed President Biden acted willfully. They would acquit President Biden, not because he is the President, or because they are supporters and voted for him, but because they would acquit anyone on what they would believe were Mickey Mouse charges.
Ironically, Attorney General Garland will reach the same conclusion as to Trump. While there may be more than sufficient evidence to prove that Trump violated the law (including witness testimony we don’t yet know about) there is one factor that makes conviction unlikely—unfairness. All of the jurors will know that the Biden Justice Department did not charge President Biden with a crime, despite engaging in very similar conduct to Trump’s. But they will not understand, and the government will be forbidden from explaining to them, the reasons why. Indeed, the court may, sua sponte, instruct the jury that they should not consider this fact in their deliberations. (If I were Trump’s defense counsel, I would ask for such an instruction in order to make damn sure that the jury did!)
In the final analysis, to whatever extent the determination of whether to prosecute Donald Trump might be a political call, it need not be. There are sufficient reasons based on pre-existing DOJ policy, why the government should not.