Would you entrust National Defense Information to this man?
Let’s get one thing straight. The classification of the documents Donald Trump had in his possession at Mar-a-Lago is not why he risks federal criminal charges. Bottom line, it’s that Citizen Trump had them at all. Secondly, that he was not keeping documents he stole safely secured.
Trump cultists are busily well-uh, well-uh, rope-a-doping about Trump’s alleged declassifying everything he took from the White House. That’s a red herring and they know it. The affidavit behind the F.B.I. search of his property (the PREMISES in the affidavit) lays that out clearly.
The documents Trump took “appear to contain” National Defense Information (NDI) covered under the Espionage Act (section 793(e), more below). After reviewing the first batch of documents reclaimed from Mar-a-Lago earlier this year, the F.B.I. told federal magistrate Judge Bruce E. Reinhart they had evidence Trump had still more he had not given up. They requested a search warrant.
The New York Times elaborates:
The F.B.I. lays out what it had already “established” before the search. Mr. Trump was improperly keeping “national defense information” — an apparent violation of the Espionage Act. And the F.B.I. believed there was a good reason to believe that additional documents were at Mar-a-Lago that would be subject to that and two other laws cited in the application: laws against concealing official records and against concealing documents as part of an effort to obstruct an official government agency effort. The scope of what the government thinks Mr. Trump was obstructing remains unclear, but at a minimum, it would seem to be the attempt by the National Archives — later joined by the Justice Department — to do its job by taking custody of public records.
In a later unredacted footnote, the F.B.I. explains why classification is not the issue:
The Times again adds context:
The affidavit notes that classification status does not matter for purposes of the Espionage Act. That law criminalizes the unauthorized retention of closely held defense-related information that could aid a foreign adversary or harm the United States. It was enacted before the classification system existed and does not refer to classification status.
Marcy Wheeler this morning points to a couple more criminal statutes at issue regarding storage of such documents:
At least one witness told the F.B.I. that Trump retained more federal documents after giving up those first 15 boxes. Surveillance video the F.B.I. obtained from Mar-a-Lago showed more boxes being moved from Trump’s insecure storage room as well as boxes being relocated to different containers (New York Times, emphasis mine):
On Aug. 8, investigators found additional material, presidential records and classified documents in the basement area, as well as in a container on the floor of Mr. Trump’s closet in his office, a former dressing room in the bridal suite above the club’s ballroom.
The closet had a hotel-style safe, but it did not contain the materials investigators sought, and was too small to hold the documents he had, according to several people familiar with the events.
We do not know what was in those documents on the floor of Trump’s office. But especially if they contained NDI (Citizen Trump was not authorized to possess), he was in violation of rules governing secure storage for such information. He also faces possible obstruction charges for not returning everything after multiple requests.
Don’t be distracted. The affidavit contains a May 25 letter from Trump attorney Evan Corcoran which argues (in what appears to this non-lawyer to be pretzel logic) that statutes regarding unauthorized removal or retention of classified documents or material do not apply to the President. Expect this to be a Trumpist talking point.
First, Trump is no longer president. Second, Corcoran “didn’t consider the Espionage Act. He was thinking only of classified information,” Wheeler tweeted. Classification is not the issue. Corcoran’s not citing the three laws the F.B.I. cited as the basis for its investigation.
As the Washington Post notes:
Trump was also warned before he even left the White House that taking any official documents with him, let alone national secrets, was illegal under the Presidential Records Act. And even Trump’s attorneys agreed that the former president needed to give the documents back, report Dawsey and Alemany, citing the National Archives’ conversations with Trump’s lawyers.
Wheeler lays out the legal risks Trump faces:
Key to holding Donald J. Trump accountable for the theft of classified documents will not be, as it is in most cases, reference to the multiple Non-Disclosure Agreements that cleared people have to sign (for the reasons the WaPo laid out). Instead, it would be to show that the President Records Act required Trump to return every Presidential Record, classified or not, and that because he did not have clearance after he was no longer President nor (according to Joe Biden) a need to know, he could not retain any NDI. Given the atrocious conditions under which he kept this stuff at Mar-a-Lago and his refusal to fix that, the guidelines on retaining classified information (which are cited in the affidavit) would also be key.
Wheeler lays out questions prosecutors would ask a jury to answer here, adding:
Multiple witnesses have testified that FPOTUS responded to consultations about the importance of returning NDI information by insisting they were, “Mine!”
“Mine!” is not going to fly. Assuming the DOJ brings charges and can find an impartial jury and assuming Trump does not “shuffle off this mortal coil” first.
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