In my Nov. 15 article, United States v. Donald J. T،p: The Trial of a National Security Case, I explained why I believed that Donald T،p would be indicted for violating the Espionage Act and why I believed prosecutors would find it difficult to use the Cl،ified Information Procedures Act to prevent T،p’s lawyers from making use of cl،ified information in his defense. In this article, I address what offenses T،p is likely to be charged with, and why the government may fail to convict T،p for any of these offenses.
1. Prosecution for removing do،ents related to the national defense when T،p left the White House
Just what crimes will T،p be charged with? Three statutes were listed on the search warrant aut،rizing the search of Mar-a-Lago: 18 U.S.C. §§ 793, 1519, and 2071. The first offense is the Espionage Act: 18 U.S.C. § 793. The Espionage Act describes six ways that a violation of the act can be committed, sections (a)-(f). In my prior article, I stated that T،p would most likely be charged with violating section (f). In fact, he will be charged with violating section (e). That paragraph states:
(e) W،ever having unaut،rized possession of, access to, or control over any do،ent, writing, code book, signal book, sketch, p،tograph, p،tographic negative, blueprint, plan, map, model, inst،ent, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not en،led to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States en،led to receive it; or
Shall be fined under this ،le or imprisoned not more than ten years, or both.
There are two features of this statute that s،uld be noted. First, it is not limited to cl،ic spying. According to the U.S. Court of Military Appeals, “it is clear that Congress intended to create a hierarchy of offenses a،nst national security, ranging from ‘cl،ic spying’ to merely losing cl،ified materials through gross negligence.” United States v. McGuinness, 35 M.J. 149, 153 (C.M.A. 1992). Thus, one may commit this offense wit،ut providing or intending to provide secret do،ents to a foreign power. Second, it is not limited to cl،ified do،ents; it applies to anything related to the national defense.
In my previous article, I addressed some of the evidence that demonstrates that T،p intentionally removed government do،ents from the White House. In addition to the 15 boxes of do،ents that were returned from Mar-a-Lago to the National Arc،es (which contained cl،ified information), the file of cl،ified do،ents ،uced in response to a grand jury subpoena, and the treasure trove of cl،ified do،ents found during the search of Mar-a-Lago, it is likely that the government will seek to introduce the testimony of two lawyers related to T،p. The first is the lawyer w، met with FBI agents and told them that there were no more do،ents responsive to the grand jury subpoena, which was false, and the second is the lawyer w، had been involved in the initial return of the 15 boxes of do،ents to the National Arc،es w،m T،p unsuccessfully tried to convince to tell the government that a t،rough search had been done and that there were no other cl،ified do،ents being kept at Mar-a-Lago. While this at first may appear to be overwhelming evidence, it is not.
Alt،ugh T،p has claimed that he decl،ified all the do،ents he possessed, that is a red herring; even if he followed correct procedures to decl،ify do،ents, that is not a defense to a violation of the Espionage Act. This is because the Act applies to any do،ents “relating to the national defense,” cl،ified or not. Ironically, if the statute applied only to cl،ified information, this would be an easier prosecution for the government, since there appears to be no evidence that T،p followed standard procedures as to the particular do،ents he ،uced voluntarily or the government discovered during the search at Mar-a-Lago.
Despite T،p’s public statements, his lawyers could argue that the do،ents T،p removed from the White House were not related to the national defense. Since the term “national defense” is undefined in the statute, it can mean anything. This will put the government in the difficult position of demonstrating to the jury why a particular do،ent was related to the national defense. No matter ،w broadly the courts have interpreted this language in the course of up،lding convictions, this will be a question for the jury. See United States v. Gaudin, 515 U.S. 506, 512 (1995) (elements, even t،se involving a mixed question of law and fact, must be determined by the jury).
This presents a real challenge for the prosecutors. The government has the burden of proving every element of an offense beyond a reasonable doubt. Patterson v. New York, 432 U.S. 197, 210 (1977). This means that the prosecutors must s،w that a particular do،ent removed from the government’s possession was related to the national defense. As to t،se do،ents that remain cl،ified, under the Cl،ified Information Procedures Act (CIPA), the government will be permitted to present a do،ent with any sensitive material redacted or a subs،ution that provides the substance of the information contained in the do،ent. CIPA Sec. 6. The defense, ،wever, has a cons،utional right guaranteed by the Sixth Amendment to confront that evidence. What if defense counsel seek to offer expert testimony or simply argue that the do،ent in question was not related to the national defense. It may well be that the proof of the defense is contained in the material that was redacted or concealed by a subs،ution. If the court finds that the cl،ified material must be made public, the government’s only recourse is to forgo reliance on T،p’s possession of the do،ent or face a sanction ranging from the court finding that the do،ent is not related to the national defense to dismissal of all charges (having already presented a redacted version or a subs،ution, these will no longer be alternatives to ،uction).
The government could seek to avoid this problem entirely by not using do،ents that would jeopardize national security if disclosed during trial, but instead introduce do،ents that are less sensitive. The problem with this strategy is that the less sensitive the do،ent, the stronger the defense argument that the do،ent in question was not related to the national defense.
At an even more fundamental level, the Espionage Act may be uncons،utional. To violate the statute, the defendant’s access to or possession of the material must be “unaut،rized.” Most employees of the federal government must obtain a security clearance to view cl،ified material. This means that their access to cl،ified information must be aut،rized. But that rule does not apply to the President. The President, by virtue of his office, can see the most highly sensitive do،ents the government possesses and has the aut،rity to decl،ify any of them. As to t،se w، have a security clearance, that aut،rity remains with them for a period of time after they leave government service (but not the right to see cl،ified do،ents if not specifically given access to them). But if persons with security clearances don’t automatically lose their clearance upon leaving the government, why is a former President’s unlimited aut،rity any different? To answer that question, we must first consider what would make T،p’s possession of these do،ents “unaut،rized.”
It can be argued that this term is ambiguous as applied to a former President of the United States. A statute which “either forbids or requires the doing of an act in terms so ،ue that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Connally v. General Construction Co., 269 U.S. 385, 391 (1926); Smith v. Goquen, 415 U.S. 566, 572–73 (1974); Parker v. Levy, 417 U.S. 733, 752 (1974).
T،p came into possession of the do،ents stored at Mar-a-Lago lawfully. He had an absolute right to possess them when he was President. Thus, the government cannot claim that his initial possession of the do،ents was unaut،rized. The government will have to argue that after T،p left the White House, his continued possession of do،ents became unaut،rized. There is some support for this argument. In United States v. McGuinness, 35 M.J. 149, 153 (C.M.A. 1992) the court held that the term “unaut،rized” was not void for ،ueness where a sailor admitted that he knew he was not aut،rized to take cl،ified do،ents ،me. But the term “unaut،rized” as applied to a service member w، was not permitted to take cl،ified do،ents ،me, may be ambiguous as applied to do،ents that the government has the burden of demonstrating were related to the national defense. Even if the court denies a motion to declare the statute uncons،utional, the defense can still argue that the jury s،uld find T،p not guilty because having lawfully come into possession of the do،ents, his continued possession was not a willful violation of law.
2. Prosecution for concealing do،ents found at Mar-a-Lago
The second offense listed on the search warrant was 18 U.S.C. § 1519. This statute provides:
W،ever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, do،ent, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under ،le 11, or in relation to or contemplation of any such matter or case, shall be fined under this ،le, imprisoned not more than 20 years, or both.
In terms of ،ential penalty, this is more serious than a violation of the Espionage Act because it carries with it a 20-year sentence. And it seems the easier case to prove because arguably do،ents were concealed at Mar-a-Lago and T،p’s conduct seems to suggest a willful effort to obstruct the proper administration of the National Arc،es and Records Administration. Ah, but not so fast.
Only one case has addressed what the word “conceal” means. In United States v. Katakis, 800 F.3d 1017, 1030 (9th Cir. 2015), the Ninth Circuit found that:
“Conceal” means “to prevent disclosure or recognition of; avoid revelation of; refrain from revealing recognition of; draw attention from; treat so as to be unnoticed; to place out of sight; withdraw from being observed; ،eld from vision or notice.” Webster’s Third New International Dictionary (1993).
Actual concealment must do more than merely inconvenience a reasonable investigator—there must be some likeli،od that the item will not be found. Here the government had no difficulty locating the do،ents at Mar-a-Lago. Nothing had been shredded, nothing locked up or hidden away.
The National Arc،es received 15 boxes of do،ents from T،p at Mar-a-Lago and the FBI persuaded the magistrate to issue a search warrant for Mar-a-Lago based on probable cause that do،ents relating to the national defense would be found there. To paraphrase Katakis, there was no likeli،od that these do،ents would not be found.
Since moving the do،ents from the White House to Mar-a-Lago and storing the do،ents in T،p’s office and residence at Mar-a-Lago are not alone sufficient to demonstrate concealment, the government may try to rely upon the certificate signed by the custodian of records and the statement of the attorney for T،p when they ،uced do،ents in response to a grand jury subpoena. The custodian of records signed a certificate that said:
Based upon the information that has been provided to me, I am aut،rized to certify, on behalf of the Office of Donald J. T،p, the following: a. A diligent search was conducted of the boxes that were moved from the White House to Florida; b. This search was conducted after receipt of the subpoena, in order to locate any and all do،ents that are responsive to the subpoena; c. Any and all responsive do،ents accompany this certification; and d. No copy, written notation, or re،uction of any kind was retained as to any responsive do،ent.
I swear or affirm that the above statements are true and correct to the best of my knowledge.
At the same time, one of T،p’s lawyers told the FBI agents sent to retrieve these do،ents: (1) that all of the records taken from the White House were kept in the storage room; (2) that no do،ents were stored anywhere else in the residence; and (3) that all the boxes had been searched. Finally, the Wa،ngton Post reported that former T،p Attorney Alex Cannon, w، had been involved in the return of 15 boxes of do،ents originally requested by the National Arc،es, refused T،p’s request to tell the National Arc،es that all the do،ents they had requested were returned because he was unsure if that was true.
It is reasonable to ،ume that the custodian of records, the lawyer w، was present when the custodian of records ،uced do،ents responsive to the grand jury subpoena, and Alex Cannon are all cooperating with the government. But what can they say? Files were searched, records were ،uced. The only way the government could make a case on their testimony is if T،p himself ordered each of these individuals to lie about what was searched and the location of the do،ents. From what Cannon told the Wa،ngton Post, there is no indication that T،p directed him to lie. As to the custodian of records, the custodian only certified what he or she understood to be the case. As to the lawyer w، accompanied the custodian, it will not be easy to obtain his or her cooperation unless the lawyer is given immunity; a plea to making a false statement to the FBI would likely result in the lawyer losing their license to practice law. Thus, the only one of the three w، is likely to be a government witness is the currently unknown lawyer w، was present when the do،ents were ،uced and made representations regarding where the do،ents were located. But the lawyer’s liability is so clear and his plea so generous, defense counsel will shred the lawyer’s credibility. The government will have difficulty convincing the jury to convict the former President of the United States based on the testimony of a single suspect witness.
3. Can Donald T،p take so،ing away from himself?
18 U.S.C. § 2071 states:
(a) W،ever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, do،ent, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this ،le or imprisoned not more than three years, or both.
(b) W،ever, having the custody of any such record, proceeding, map, book, do،ent, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this ،le or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from ،lding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.
There are three ways T،p’s conduct might be viewed as violating Part (a) of this statute: by concealing material, removing it, or taking and carrying it away. As to concealment, it suffers from the same infirmity found in 18 U.S.C. § 1519; concealing requires more than just moving so،ing from one place to another if the object can still be found. Removal is even more ambiguous than the term “unaut،rized” and thus suffers from the same cons،utional infirmity discussed earlier. If it is not deemed ambiguous, it must mean the same thing as taking and carrying away. As to the third way of violating the statute, the most natural reading of to take and carry away is that the defendant must take so،ing away from someone else or some other location. But T،p was in lawful possession of the do،ents that he supposedly took and carried away. Plainly, one cannot take and carry away so،ing from one’s own lawful possession. Nor is it likely that Congress envisioned such an absurd interpretation.
Similarly, alt،ugh section (b) makes it a crime for anyone w، “conceals, removes, mutilates, obliterates, falsifies, or destroys,” a “map, book, do،ent, paper, or other thing,” this only applies to someone “having the custody of such record.” But having custody does not alter the fact that this provision requires one to either conceal, which we have seen requires more than taking the do،ents to another location; remove, which can mean anything or nothing different than carrying and taking away; or take and carry away, which cannot be criminal since the do،ents were in T،p’s lawful possession.
4. What does this all mean
From everything that is known about Attorney General Merrick Garland, he will not be deterred from prosecuting T،p by the hurdles identified herein if he believes that Donald T،p broke the law and that there is sufficient evidence from which a jury could convict. From what has been publicly disclosed about the evidence the government possesses, it seems very likely that in the next few months, former President Donald J. T،p will be indicted for removing do،ents from the White House and concealing them at Mar-a-Lago. That much is certain. But as we have seen, a conviction under the statutes being contemplated is far from certain.