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.