Why the Case Against Donald Trump Remains Incomplete

Below is my column in the Hill on the lingering questions concerning any prosecution of former President Donald Trump for the retention of classified or sensitive material. As previously discussed, the three referenced criminal provisions do not require classified status of documents to be the basis for prosecution. However, if the documents were declassified, it would make any prosecution very difficult, if not untenable, though the obstruction count could be based on affirmative false representations made to the government. The point is only that we still do not have sufficient information to judge the basis for the raid or the prospects for prosecution despite the often breathless coverage.  The affidavit remains key to ending this speculation and quelling conspiracy theories. That is why Attorney General Merrick Garland should call for its unsealing.

Nevertheless, figures like John Dean are saying that defenders of the former president will “have egg on their faces” when this case is done and presumably Trump is prosecuted. Perhaps, but what is clear is that there is no such risk in others claiming an array of proven crimes for six years that were never charged. Figures who pushed the debunked Russian collusion, incitement, or bizarre attempted murder claims are now claiming with the same certainty that conviction is finally at hand. Once again, before the eggs fly, the release of actual evidence would be useful.

Here is the column:

The FBI’s raid on former President Trump’s Mar-a-Lago residence was received by many with joy bordering on ecstasy. Comedian Stephen Colbert declared the raid to be Christmas come early, while others joked about the possibility of executing Trump as a spy. Yet the celebration may be another triumph of hope over experience, with pundits again declaring an open-and-shut case without seeing the actual evidence.

The problem is that much in this investigation remains unknown and much of the analysis seems more visceral than legal. While details may be forthcoming that will fill in the glaring gaps, any prosecution on the record we know today would face novel — and potentially insurmountable — questions.

At the risk of being a killjoy, here is what we know and don’t know about these charges.

We know at least one set of the documents recovered from Trump’s home was marked as “classified/TS/SCI” or “top secret/sensitive compartmentalized information.” There were four sets of top-secret documents, three sets marked “secret” and three marked “confidential.” Trump has no right to retain classified information after leaving office, particularly information classified at the high TS/SCI level.

The warrant used by the FBI in its search expressly allowed the gathering of “all physical documents and records constituting evidence, contraband, fruits of crime or other items illegally possessed in violation of 18 U.S.C. §§ 793, 2071, or 1519.”

The inclusion of an alleged violation of the Espionage Act (Section 793) lit up the internet. It seemingly doesn’t matter that the Espionage Act has long been denounced by civil libertarians as a vehicle for political abuse by the Justice Department. It also doesn’t matter that a charge under the act does not mean there is actual espionage or foreign intelligence involved in the case. Rather, it addresses alleged acts of unlawfully “gathering, transmitting or losing … defense information.”

Surprisingly, the warrant did not specify which section of law might be the basis for a criminal charge. One possible provision is Subsection (d) covering those who lawfully possess documents but had “reason to believe [the information] could be used to the injury of the United States or to the advantage of any foreign nation.” This subsection allows for a charge of willfully retaining or failing to deliver such material “on demand” to an officer or “employee of the United States entitled to receive it.”

Subsection (f) is even more generous to prosecutors. It allows a criminal charge for “gross negligence” leading to protected information being “removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed.”

Section 793 was cited as the basis for the 2016 investigation of Hillary Clinton in her email scandal. Clinton gathered and transmitted classified (including “top secret”) information as secretary of State. She and her staff also were criticized for failing to promptly supply evidence. Nevertheless, then-FBI Director James Comey declared that “although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”

The Justice Department explained in an Aug. 16, 2016, letter to Sen. Chuck Grassley (R-Iowa) on the Clinton investigation that, although the statute allows for gross negligence charges, prosecutors have long balked at the “constitutional implications of criminalizing such conduct without requiring the government to prove that the person knew he or she was doing something wrong.” The Justice Department said it also rejected 18 U.S.C. § 2071 with regard to Clinton — the same section referenced in the Trump warrant in willfully and unlawfully concealing, removing or destroying federal records.

The final provision mentioned in the Trump warrant, 18 U.S.C. 1519, concerns destruction, alteration or falsification of records in federal investigations. This charge could be based not just on government documents in Trump’s possession but on allegedly false inventories or lists given to federal officials during months of discussion about the documents.

These crimes still require intentional or knowing acts. (They do not require classified status as an element). With Trump lawyers negotiating the status of the documents and previously turning over some material under subpoena, there is a plausible defense based on Trump’s belief that the material was no longer classified and that his team was cooperating with officials in trying to resolve any disputes. If Trump believed the material was declassified and relied on legal advice to resolve any disagreements, then prosecutors would combine an unprecedented legal case with a heavily contested factual record.

At the heart of such a case would be a very novel legal question. While many legal experts have cited the detailed, demanding process for declassification, some fail to note that presidents have long exempted themselves from declassification procedures. Indeed, Trump claimed the right to declassify material unilaterally and orally at the start of his term.

Other presidents have asserted exemptions from declassification authority. An order by former President George W. Bush stated such an exemption for “information originated” by a president. That order was reaffirmed by former President Obama in Executive Order 13526 in 2009 and expressly exempts presidents, vice presidents, their staffs and “other entities within the Executive Office of the President.”

Trump also reportedly had a standing order that declassified any material he removed from the White House to take to Mar-a-Lago or other locations. We have not seen that order, and it is not clear if such an order was shown to the FBI.

If that standing declassification order existed, it ended with his presidency, of course. However, it still existed when these boxes were taken to the resort. There may also be complicating logistics for investigators: If the documents were taken out of the White House on the last day of his presidency, the classification markings on the cover pages and internal headings might not have been crossed out.

There has never been litigation on the scope of this exemption or a president’s declassification authority. Nor is it clear whether any standing order was disclosed to the judge who approved the FBI’s warrant — but it could create a threshold legal challenge to a criminal charge.

The Trump team insists this defense was raised when an earlier subpoena was served at Mar-a-Lago in June. Nevertheless, it reportedly turned over 15 boxes of material, including classified documents, and replaced a lock on the storage area for enhanced security. But it is not clear whether the FBI raised concerns over the remaining material or sought its return before this week’s raid.

In asking the judge to unseal the warrant and the list of documents seized, Attorney General Merrick Garland declared that “the Department of Justice will speak through its court filings.” But he omitted the key filing that would speak to these issues: the underlying FBI affidavit.

In the meantime, pundits are discussing Trump’s disqualification from future public office based on his expected conviction. Even if convicted, such a disqualification would be flagrantly unconstitutional — but, when it comes to Trump, neither the law nor the evidence ever seems particularly important to the analysis.

However, a judge may have slightly greater expectations before these charges ever see a day in court.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

254 thoughts on “Why the Case Against Donald Trump Remains Incomplete”

    1. Although the actions of the FBI suggest it was issued at least by July 2016, there is no doubt it was issued well before that. That being said, this Salon article from August 2016 is a great example of the Fatwa: It is likely what continues to inspire Natacha and a few others.

      Donald Trump is an existential threat to American democracy, and therefore he can’t simply lose the election. He has to be electorally humiliated. Crushed. Embarrassed. The candidate who pledged “so much winning” has to be personally mortified by an unequivocal loss — an electoral massacre so severe that it leaves little room for screeching about rigged elections, and, more importantly, the loss has to be so overwhelming that it discourages any similar would-be populist tyrants from emerging in the future. Trump and anyone similar needs to be politically put-down in a way that permanently ends whatever derangement led us to this point.
      https://www.salon.com/2016/08/02/the_u_s_cant_let_trump_win_his_victory_would_embolden_the_most_hateful_americans_who_fostered_his_rise/

  1. Highly recommend reading this article in today’s “The Federalist: “Records Suggest A Backbench Bureaucrat’s Partisan Grievance Spurred The FBI’s Nakedly Political Raid On Trump” by Margot Cleveland. The article is instructive because it points out the nuances in government speak. It also identifies the bitter backbencher as recently retired archivist DAVID S. FERRIERO.

  2. Turley’s explanations of the law. are helpful.

    Highly recommend reading this article in today’s The Federalist” “Records Suggest A Backbench Bureaucrat’s Partisan Grievance Spurred The FBI’s Nakedly Political Raid On Trump” by the always reliable Margot Cleveland. The article is instructive because it points out the nuances in government speak. It also identifies the bitter backbencher as recently retired archivist DAVID S. FERRIERO. Mr. Ferriero’s name first appeared in articles in WAPO and the NYT.

  3. Russian collusion, the egg on face belonged to all those that bought the lie. The call with Ukraine put egg on faces once Trump released the full transcript. The no attorney, no camera, no master to oversee what was taken does not speak to an above board operation by a now very suspect justice department and FBI.

  4. The latest corruption of the DoJ, exposes their corruption by refusing to appoint a special master to sort through the disputed records.

  5. Here we go again.
    After 7 years of “the walls are closing in!” are they?
    I am not holding my breath.
    Their previous efforts were not exactly stellar. More like one breathless bombshell after another that turned out to be a dud, with a few would of only required a little effort in journalism to confirm or deny the . . . dud.
    With Garland and the FBI Keystone Kopps like routine, almost makes the Steel dossier look credible. And they did that to themselves.
    The Dems appear desperate to charge Trump with something, anything.
    Not good optics.

    If there were a trial, will it look as corny as the Jan6 hearings clown show, only for them to prove beyond reasonable doubt how much the US has become a banana republic?

  6. Does any of this minutia even matter when the justice department has never taken seriously any of the other high level individuals who have arguably done worse?

  7. Such theater. The left gobbles up the fantasy as if it were real.

    The time line tells us President Trump invited over the Naitional archives and they took everything they wanted. The the Doj got involved. The last meeting between the DoJ and the Trump team was June 3rd. A warrant was signed August 5th, claiming exigent circumstances. The emergency caused the govt to delayed the raid until August 8th. More than two months after last productive talks were taking place. and over 6 months from the time the Government knew classified documents were missing.

    DoJ precedent dictates all of the charges claimed the raid have been ignored in the past. As per the Determination of Comey. Who, he himself distributed classified documents.

  8. Everyone needs to avoid a rush to judgment. Let the system work, unencumbered by partisan hatred.

    That said. all of this renews my belief that all federal agencies except State and Defense have to be moved outside of the Beltway. Move DOJ to Omaha and the FBI to Little Rock.

    1. Let the system work, unencumbered by partisan hatred.

      The system is proven corrupt. The DoJ is nothing more than the Democrat Party Secret Police. You have to ignore the DoJ actively involved in spying on a Presidential Campaign.

  9. One thing Turley or any of the other people running interference for Trump in this and other investigations is – what legitimate reason did Trump have to possess the information after he left office?

    If there was one, they would have provided it already. Trump has issued a bunch of statements but none of them give a legitimate reason he too the information and kept it. But Turley and others want you to look everywhere and investigate the investigators but don’t insist on Trump answering that simple question.

    The reason is that Trump does not have a legitimate reason, and his defenders are having a hard time coming up with one themselves.

    1. what legitimate reason did Trump have to possess the information after he left office?

      The President does not answer to anyone when exercising constitutional power.

      1. Biden is the President. Trump is a private citizen who is illegally possessing government documents.

        But thanks for playing.

        1. Trump is a private citizen who is illegally possessing government documents.

          yes we are all aware of what you think you have seen reported. Except that reporting, NOT saying what you think. If you remove every statement that includes “if”, you create a vacuum, quickly filled by leftists dreamcasting.

          1. There is no “if” that Trump is a private citizen. There is no “if” that Trump as a private citizen had a legal right to have those documents in his possession. There is no “if” about the fact that he did break the law.

            It’s not about what anyone thinks. It’s about what everyone knows to be true based on the facts.

        1. The president answers to American people and the laws of this country.

          So that’s how you do it in Wallyworld. Declare something is so and it will be so.

          Unless you also believe in unicorns, now do Joe Biden.

        2. So does the FBI, but apparently the fascists in government find fascism preferable to liberty.

    2. But Why Did Trump Have These Documents At All? wrote, “what legitimate reason did Trump have to possess the information after he left office”, “The reason is that Trump does not have a legitimate reason, and his defenders are having a hard time coming up with one themselves.”

      You’re biasedly ignorant and just plain wrong.

      Trump can take anything that is considered attorney-client privileged information because no one on planet Earth including any agency or person with the United States government has the right to see that, period. Plus there is other confidential information such as private conversations between the President and his advisors that is covered by Executive privilege. Plus there is the matter of things that he can take to be used in his Presidential Library. All these things are negotiable with the people at the National Archives with the exception of attorney-client privileged information which is 100% off limits.

      As President of the United States, President Trump could literally declassify anything he wanted and, according to something that was done while President Obama was in office, he did not have to follow the same declassification procedures as others. All the President had to do was say it’s declassified and it’s declassified, period. It has also been reported and supposedly confirmed by someone in the White House at the time that President Trump had a standing order that anything he removed from the Oval Office was immediately declassified until such time as he as President ordered to be reclassified.

      You’re biased ignorance has been exposed.

      1. “private conversations between the President and his advisors that is covered by Executive privilege”

        Normally, the person who asserts Executive Privilege is the sitting President, who is Biden.

        “there is the matter of things that he can take to be used in his Presidential Library.”

        Nope. He cannot take anything from his Administration for his Presidential Library. All Presidential Records must go to NARA by law, and he might be able to borrow them from NARA, but they have to go to NARA. For example, as NARA noted about Obama and his Presidential Library: “The National Archives and Records Administration (NARA) assumed exclusive legal and physical custody of Obama Presidential records when President Barack Obama left office in 2017, in accordance with the Presidential Records Act (PRA). NARA moved approximately 30 million pages of unclassified records to a NARA facility in the Chicago area where they are maintained exclusively by NARA. Additionally, NARA maintains the classified Obama Presidential records in a NARA facility in the Washington, DC, area. As required by the PRA, former President Obama has no control over where and how NARA stores the Presidential records of his Administration.”

        “All these things are negotiable with the people at the National Archives”

        Nope. By law, Trump is required to turn over 100% of Presidential Records to NARA.

        “As President of the United States, President Trump could literally declassify anything he wanted”

        As Turley points out, the laws used as the basis for the warrant apply to relevant documents regardless of whether they’re classified.

        “All the President had to do was say it’s declassified and it’s declassified, period.”

        Nope. Unsurprisingly, there is paperwork that must be filed to declassify things.

  10. I am wondering why Dr. Turley is completely ignoring Obama Executive Order 13526 dealing with classified and declassification of secret documents. Section 3.5 (a)(3)(b) specifically exempts the president and vice president from the review process of declassifying documents. It poses NO limitations on the manner of declassification. Presumably this includes verbal orders:

    Sec. 3.5. Mandatory Declassification Review.
    (a) Except as provided in paragraph (b) of this section, all information classified under this order or predecessor orders shall be subject to a review for declassification by the originating agency if
    (1) the request for a review describes the document or material containing the information with sufficient specificity to enable the agency to locate it with a reasonable amount of effort;
    (2) the document or material containing the information responsive to the request is not contained within an operational file exempted from search and review, publication, and disclosure under 5 U.S.C. 552 in accordance with law; and
    (3) the information is not the subject of pending litigation.
    (b) Information originated by the incumbent President or the incumbent Vice President; the incumbent President’s White House Staff or the incumbent Vice President’s Staff; committees, commissions, or boards appointed by the incumbent President; or other entities within the Executive Office of the President that solely advise and assist the incumbent President is exempted from the provisions of paragraph (a) of this section.

    1. Turley didn’t ignore that Obama Executive Order 13526. He not only mentions it (“That order was reaffirmed by former President Obama in Executive Order 13526 in 2009”), he links to it in the column.

      Also, Turley clearly noted “the three referenced criminal provisions do not require classified status of documents to be the basis for prosecution.”

    2. As to why he does not mention the Obama EO or presidential rights concerning classification of secrets, I think he says somewhere in this article or elsewhere that the laws cited in the warrant do not relate to whether or not the information is classified. So that EO and presidential power is irrelevant to obstructing justice or spying (the espionage act)

  11. Trump was caught with highly classified documents. The DoJ spent months telling him they were classified and wanted them back. He refuses. This is looking like an airtight case. It is also frightening that many think that Trump declassifying everything he moves is a defense instead of a dire threat to national security.

    1. “Trump was caught with highly classified documents.”

      Wrong. There are opposing claims and historical evidence shows Trump to be in the right.

      “The DoJ spent months telling him they were classified”

      Wrong, unless you have proof as opposed to opinion.

      “wanted them back.”

      Wrong in substance sine NARA and the FBI already were there multiple times. They could have asked Trump for permission for another look or even subpoenaed him.

      “He refuses.”

      Wrong.

      “This is looking like an airtight case.”

      Wrong and a foolish statement.

      “It is also frightening that many think that Trump declassifying everything he moves is a defense instead of a dire threat to national security.”

      Wrong. There is history from three other Presidents.

      You are as wrong as your twin, but at least you are identifying yourself.

      1. Anonymous (S. Meyer),

        “ Trump was caught with highly classified documents.”

        Wrong. There are opposing claims and historical evidence shows Trump to be in the right.”

        Those “opposing claims” have already been proven to be lies.

        Highly classified documents WERE found to be illegally in his possession. The receipt of the items confirms it.

        “ The DoJ spent months telling him they were classified”

        Wrong, unless you have proof as opposed to opinion.”

        The very fact that they TOLD Trump multiple times to return that classified material before being threatened with legal action shows they did. Then they had to resort to issuing a subpoena further proves he was not cooperating or complying.

        “ wanted them back.”

        Wrong in substance sine NARA and the FBI already were there multiple times. They could have asked Trump for permission for another look or even subpoenaed him.”

        They did ask for permission. Trump refused that’s why he was subpoenaed. You get a subpoena when you’re not complying. When it was discovered that he did not fully comply and still had more documents the search warrant was issued.

        “ Wrong. There is history from three other Presidents.”

        Yes, history that has records of president’s declassifying documents WITH a paper trail of which Trump has no proof of.

        Trump has been lying nonstop since the search warrant was executed. He’s a proven known liar. That’s why the DOJ didn’t trust him when he lied about turning over everything.

        1. Svelaz, not every anonymous is me but I will stand behind every word said that you replied to. Virtually everything you said in reply to anonymous was wrong and stupid, but you already know that.

          NARA and the FBI have been at MAL multiple times. Why can’t they get things right the first time. I’ll bet it is because those in charge are relatives of yours, right?

  12. Dean should worry about the egg and the blood all over his face. The same people who gave us the fake Russian Collusion paid for by Hillary Clinton think they have us fooled. We see through them and their hoaxes. They will not like what is coming…because it is coming. They have kicked the angry hornets nest one too many times.

  13. I appreciate all the fine legal analysis, JT, but Trump investigations have never been about legal cases. Like Russia-gate, Jan6th-gate and every other Dim/FBI/DOJ/Corporate Media plot, it’s purely a politcial case designed to deny the American public the chance to vote Trump back into office. And like the rest of those “gates,” the thumb is on the scale and lawfare is raging. They don’t care if Trump gets convicted; they just want him charged … with something, anything. Then, maybe some moderates or independents will think “oh, he’s guilty of something” and not vote for him. It’s as pure a case of political cynacism as you can get and the Dims are the culprits.

    One of the key deciding factors for extending anyone the benefit of the doubt is your firm belief in the good faith motive of their actions even if they are unclear. For those who’ve watched Trump in office, there’s little doubt he loves the country. Can you say that about the Dims? Any one of them? They’ve made it clear that they hate American society (some can even “smell them at Walmart”) as it stands and just like any other foreign enemy wants to change it to their liking. That’s reason enough for a fair government to drop the Trump matter and let the people decide. When a government doesn’t trust the people to decide, that’s not rule of law. It’s pure power mongering and a pretty good first step to tyranny.

  14. All Republicans in Congress must insist that any interpretation of 18 U.S.C. §§ 793, 2071, or 1519 by AG Garland be consistent with the interpretation applied to HRC. No word play like substituting “extremely careless” for “grossly negligent.” Although prosecutors might not be usually legally bound by the legal interpretations by previous prosecutors, here, where the office of the Presidency of the United States in involved, it is important to make sure the parties are treated equally. Is Mitch McConnell, et al., up to this task?

    1. See the Dershowitz Op-Ed in today’s edition of the WSJ – same sentiment expressed.

  15. Professor Turley, thank you for your continued coverage of the legal issues in connection with this current drama. Coming on the heels of the J6 miniseries, many concerned citizens will stay tuned.

  16. One former White House worker revealed online that Trump referred to the Oval Office as The Oval Toilet.
    He once said to Putin on the phone:
    I’m in the Oval Toilet and I’m here with the shit.”

  17. Who needs facts when there’s so much “righteous” derangement on the left. Nothing exposes the totalitarian tendencies of the left more than calls for “Trump’s execution” even before there’s an indictment, trial, and conviction. Meanwhile, the verbal threats against the FBI are, if we follow the reasoning of the BLM cheerleaders, just people letting off steam. If extremists have a right to camp out on the lawns of Supreme Court justices and harass them for months, surely a few Twitter comments shouldn’t terrify the mighty FBI. Bottom line, the Democrats are using the same tactic that failed in Russiagate — obtaining what is certainly a fake affidavit to obtain a warrant to sniff around Trump’s private papers (and Melania’s clothing) hoping to find something — anything — they can pin on him. It didn’t work the first time, even though it cost the taxpayers plenty. And it won’t work this time. The Dems should either get a better strategy for winning elections, or just get out of the business of politics.

    1. And, the cost of all of these efforts to control outcomes and related narratives has been considerable. First, there are the costs borne by taxpayers of all of the investigations, as adjusted for inflation. Second, there is the incalculable cost of disillusionment among the citizenry who wonder whether the political class will ever take its thumb off the scales of justice. Then, there is the opportunity cost resulting from the current administration’s questionable priorities, e.g. funding for more IRS agents instead of more border patrol agents. Sounds like a negative net present value project to me.

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