No perp walk yet
Speculation flew Sunday night after spotters captured video of TFG abruptly leaving his Bedminster, New Jersey golf club and arriving at Dulles International Airport near Washington, D.C. still in his golf shoes. (He does seem to have brought a large suitcase and a suit bag.) It’s unlike former president Donald J. Trump to do anything un-trumpeted via Truth Social these days. Unless he was headed to Walter Reed for a colonoscopy, a Twitter user speculated.
Had Trump come to be reinstated, cultists asked? Had he come to be questioned by the FBI? Shouldn’t the FBI use his absence to search Bedminster for more purloined documents that former FBI agent Peter Strzok suggested could be hidden there?
Pending further details, of more interest is a guest post this morning in James Fallows’ “Breaking the News” newsletter. Jan Lodal “has held responsible positions involving military policy, the intelligence community, nuclear strategy, and similar realms” for decades across a string of presidential administrations both Republican and Democrat. He offers perspective on Trump’s greatest legal jeopardy under the Espionage Act of 1917.
“This Act was already ‘old’ when the current document classification system was put in place during World War II,” Lodal begins. It consists of six subparagraphs regarding “information respecting the national defense.” Conviction under the first three require evidence of intent to use such information “to the injury of the United States, or to the advantage of any foreign nation.” No unanimous jury could find Trump either a traitor or a spy, Lodal believes.
For a conviction under another provision (e), a jury would have to find Trump in “unauthorized possession” of “information respecting the national defense.” Again, getting twelve jurors to agree that the former president had unauthorized possession would be a reach.
Subparagraph (f) involves gross negligence in handling such documents and in failing to report it to a “superior officer.” Same problem in convicting a president, Lodal writes:
But there is one remaining subparagraph of the Espionage Act that is unambiguously applicable to what Trump has done — subparagraph (d). This paragraph makes a straightforward action a crime: namely, failing to return classified documents if properly directed to give them back. No proof of the level of classification, or the intentions of the document holder, or the content of the documents, is required. Just a simple question, did he or she give them back or not.
The only subjective or “soft” element of proof required by this paragraph is one easily met at trial. That is whether the perpetrator believed the information in the boxes “could be used to the injury of the United States or to the advantage of any foreign nation.” Even Trump had to believe that: it’s true by definition of any document that has been classified. You cannot classify a document otherwise.
This section of the Espionage Act does not require that prosecutors access or cite individual documents to prove the crime. It requires only that there were any classified documents in the boxes that Trump did not return. On that there is no doubt. It was settled by the release of the Department of Justice (DoJ) Affidavit authorizing the Mar-A-Lago document seizure.
Trump was asked seven times to give the Mar-A-Lago documents back and did not comply, despite the clear requirement of this section of the Espionage Act. The first request came from the National Archives, citing the Presidential Records Act. They made three formal demands the he give them back. Then the Department of Justice intervened and asked three more times but didn’t get them back. Finally DoJ got a court subpoena ordering that he give them back, but he didn’t. So the FBI had to forcibly take them.
Holding Trump accountable under law for possession of the seized documents (and others still unaccounted for) will require prosecutors to avoid “the use of those elements of the law that could give any pro-Trump jurors an excuse to vote for acquittal.” Subparagraph (d) is prosecutors’ best bet, argues Lodal. It’s a process crime not involving proving intent.
Several instances in which past intelligence leaks harmed national security were never prosecuted, Lodal offers, because proving the “soft” (subjective) elements of a crime is so difficult, or because of First Amendment protections for the leaker.
Fani Willis, the district attorney for Fulton County, Ga., is still investigating attempts by TFG and his allies to subvert the 2020 presidential election in her state (New York Times):
In recent weeks, Ms. Willis has called dozens of witnesses to testify before a special grand jury investigating efforts to undo Mr. Trump’s defeat, including a number of prominent pro-Trump figures who traveled, against their will, from other states. It was long arm of the law stuff, and it emphasized how her investigation, though playing out more than 600 miles from Washington, D.C., is no sideshow.
Willis could beat the Department of Justice to a Trump indictment.
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