Criminal investigative authorities have been circling Donald Trump for years, but he has yet to be criminally charged in any of those investigations. Whether because of evidentiary concerns arising out of the difficulty of proving a case against someone who does not communicate in writing (the Manhattan district attorney’s investigation), or Department of Justice policy prohibiting the indictment of a sitting president (Special Counsel Robert Mueller’s investigation), Trump has evaded prosecution.
But that may change soon.
There are at least three investigations closing in on the former president: an investigation into election interference in Georgia by Fulton County District Attorney Fani Willis, a DOJ investigation into conspiring to overturn the 2020 election and obstructing Congress, and, now, an investigation into concealing information related to the national defense and obstruction of justice.
It’s clear by now that Trump is not only a danger to our democracy, but also a danger to our national security.
In a court filing last Tuesday, the Department of Justice stated that more than 320 classified documents, including more than 100 documents seized earlier this month, have been recovered from Mar-a-Lago. The court filing went on to say that there was, “evidence that government records were likely concealed [from authorities] and that efforts were likely taken to obstruct the government’s investigation.”
This is deeply concerning. The government is alleging that Trump and his associates took efforts to conceal and prevent the return of certain national security documents after repeatedly being asked to return them. It is now being reported that the Justice Department is looking into whether Trump and his team obstructed justice, which may be the linchpin to holding him accountable.
In May of 2021, the National Archives and Records Administration (NARA) contacted the former president’s team to request the return of certain documents they knew to exist but had not received pursuant to the Presidential Records Act. Yet for several months, Trump’s team refused the National Archives’ request and the documents were not returned.
In January 2022, nearly a full year after Trump left the White House, 15 boxes of documents were loaded into a truck to be transported back to the National Archives. Then, a month later, in February 2022, upon learning that classified documents were among the 15 boxes, NARA officials referred the matter to the Department of Justice to investigate the mishandling of White House documents and classified material.
Despite additional voluntary requests to retrieve other sensitive documents from Mar-a-Lago, Trump refused to produce everything, prompting the DOJ to issue a grand jury subpoena in May for all remaining documents. Even then, we have now learned, Trump concealed some highly sensitive documents from the DOJ, despite a certification from his counsel that all sensitive materials had been returned to the government.
This 18-month investigation was a prelude to the extraordinary early morning search of non-residential areas at Mar-a-Lago, including Trump’s office. As court documents filed over the past two weeks made clear, this search was a last resort arising from Trump’s efforts to obstruct the investigation and conceal highly classified and sensitive information.
Indeed, more than 100 classified documents were recovered during the search, reportedly including information about confidential human sources or nuclear secrets, some of the most sensitive and highly classified information in possession of the United States, which cannot be simply declassified on a whim by the president.
Because the DOJ presented evidence to the court that Trump not only continued to possess the most highly classified information after he certified through counsel that a “diligent search” yielded half as many classified documents as the FBI ultimately found during the search, the judge not only found probable cause to support a violation of the Espionage Act for hiding or concealing information pertaining to national security, but he also found probable cause to believe that Trump was obstructing justice by refusing to provide all documents responsive to the subpoena.
When it comes to information “respecting the national defense” (which is not always classified information), the Espionage Act is a broad statute that does not necessarily require intent to disseminate or distribute such materials.
But in weighing whether a set of factual circumstances supports such a charge, prosecutors consider four factors: intent to distribute, clear knowledge of document importance, volume of the material and whether or not investigators have been lied to.
In order to charge a former president for the first time in our nation’s history, prosecutors likely will need these factors to apply.
In this case, all four factors are present.
While we don’t know the evidence the DOJ presented to the court of Trump’s failure to comply with the subpoena and continued possession of highly classified documents, I suspect the DOJ learned from a witness close to the former president about his concealment of the documents that were obtained during the search. That witness, of course, may also have information about Trump’s intent in concealing those documents.
But common sense also tells that there is no legitimate purpose for a former president to mishandle and conceal highly classified information in defiance of a grand jury subpoena (which in and of itself could warrant contempt and jail time). It is one thing to mistakenly remove classified information from the required secured locations in which it must reside. It is altogether something else to defy a subpoena for those documents in order to keep them in an unsecured location. This defiance creates an inference of nefarious intent and militates in favor of prosecution.
On the second prong — clear knowledge of the importance of the documents — the markings on the documents are clear proof that Trump understood their importance. The now-ubiquitous photo from the DOJ court filing showing cover sheets marked “Secret,” “Top Secret” and “Sensitive Compartmented Information” would seem to indicate an obvious and significant level of seriousness.
Moreover, the blatant and egregious mishandling of some of the country’s most sensitive documents in a place that has been infiltrated by numerous shady foreigners is grounds for serious concern. Trump not only knew of the importance of the documents, but he carelessly handled the sensitive information, jeopardizing our national security. This prong, too, easily argues in favor of prosecution.
Third, on the volume of material taken, more than 320 classified documents, including some of the most sensitive intelligence documents we have, were recovered from Mar-a-Lago. Once again, this prong favors prosecution.
The volume of the material taken is damning enough, but it is the fourth factor that poses the former president’s biggest problem: lying to investigators. The DOJ has clearly laid out that Trump’s attorneys’ certification of compliance with the subpoena was patently false. And the facts point to Trump’s direct involvement in this misrepresentation.
It appears from the DOJ filing that Trump’s attorneys were under the impression that all boxes transferred from the White House were housed in a storage room at Mar-a-Lago, in which dozens of classified documents were uncovered during the search.
But some documents were also found in Trump’s office, drawing a direct line to the former president. So even if there is some question as to who made the misrepresentation to the FBI about the storage room — which could lead to disbarment and prosecution of the lawyers if they knowingly lied to the FBI — the documents found in Trump’s office are damning against him. The concealment of additional documents through lies to investigators is a strong factor in favor of prosecution.
Which leads back to obstruction of justice, a serious crime in its own right because our criminal justice system cannot produce a just result if the authorities cannot obtain evidence through proper means. Obstruction of justice is also excellent evidence of knowledge and intent, as juries can and do infer that a defendant intended to commit a crime if they tried to obstruct authorities from uncovering that crime. In this case, it further supports the assertion that Trump intended to conceal the classified documents for some nefarious purpose and would be powerful evidence in support of a charge of a violation of the Espionage Act.
Based on the facts known to the public at this time, all of the factors considered by prosecutors in deciding whether to charge a violation of the Espionage Act support such a charge against Trump. And if the facts, the evidence, and the equities support such a charge, then the DOJ is obligated to proceed if we are to remain a country grounded in the rule of law.
Finally, regardless of whether Trump is prosecuted for a violation of the Espionage Act, there is perhaps a bigger question: Why did he go to such great lengths to conceal his own possession of such highly classified documents? What was he planning to do with those documents now that he is no longer in office?
The possibilities are vast, and the natural implications are potentially even more serious than a violation of the Espionage Act. Perhaps the DOJ knows the answer to that question from evidence developed during the investigation.
Prosecuted or not, every American has a right to know the extent to which Donald Trump is a threat to our national security.
Goldman, a former federal prosecutor, is the Democratic nominee for New York’s 10th Congressional District, covering parts of Brooklyn and Manhattan.