With all the back and forth over Judge Aileen Cannon’s blatant attempts to derail the investigation of Trump’s mishandling of classified documents (including the latest where Trump’s legal team is demanding everything be reviewed by a special master), there’s still what looks like what could be a slam dunk for indictment.
There’s no question Trump had documents that were clearly marked as classified at Mar-a-Lago. There’s no question that Trump is claiming ownership of those documents marked classified. There’s also no question that he was asked to return them — and didn’t; hence the FBI getting a warrant to search the place and finding documents that should have been returned.
Tom Sullivan writing at Digby’s place has picked up on an article at James Fallows “Breaking the News” newsletter by Jan Lodal. He:
...“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.
emphasis added
Lodal cites several sections of the act and explains why getting a conviction of Trump for violating them could be problematic — but then cites one particular section that seems to leave zero wiggle room:
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.
emphasis added
Tom Sullivan goes on to bring up the action in Georgia where Trump is facing an investigation into voting fraud.
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.
Former FBI agent Peter Strzok has also raised the possibility that Trump’s Bedminster club should be searched for more documents. And if that wasn’t enough fun, people are trying to figure out why Trump showed up in Washington DC without warning, still in golf shoes… (About 3 minutes in, via Andrew Leyden.)
Meanwhile, while Judge Cannon and Trump’s lawyers do their best to keep the Department of Justice from carrying out their investigation into Trump’s theft and mishandling of government documents, Marcy Wheeler at Empty Wheel points out DOJ still has lines of investigation to pursue.
DOJ maintains that Cannon’s order does not prevent them from questioning witnesses or otherwise obtaining evidence about:
- How classified records were moved from the White House to Trump properties
- How classified records were stored after they were removed from the White House
- What steps Trump and others took in response to the May 11, 2022 grand jury subpoena
- Recollections about classified records not relying on those seized on August 8
One person who would know a good deal about these matters, and might have an interest in being rather forthcoming about them if she were interested in minimizing her potential legal exposure, is Trump’s Custodian of Records. [Christina Bobb possibly.]
Wheeler also takes note that Trump has effectively confessed to Obstruction of Justice.
In his 21-page response to Judge Aileen Cannon informing her they want her to reject the government’s request for a stay of her injunction prohibiting the government taking investigative steps using 103 documents marked classified, Trump confesses to obstruction of justice.
Trump admits, over and over, that when the FBI showed up with a warrant authorizing the seizure (in part) of any documents with classification markings, it found such documents on the premises.
As if that wasn't enough, Trump is also attempting to make a legal argument that would force the return of the documents to him for… reasons. Which he then contradicts.
...Still, as far as it goes, the Fitton argument is that everything is either a Presidential Record or a personal record, and the latter don’t belong in the Archives, and that should trump (heh) their seizure with a lawful warrant that authorized the seizure of everything stored with or in the same place as documents marked as classified.
Except in the paragraph immediately before the Fitton argument, Trump concedes that’s not right. Before you split things into Presidential and personal records, you need to split them into Presidential and Federal Records…
...That is, he admits his two-category sorting is false.
And then he just drops the FRA, never to mention it again.
….Another category of agency documents, for example, are those pertaining to the Russian investigation, which should never have been at the White House in the first place, but which Trump wants to own for all time by simultaneously claiming he declassified and then made personal records of them.
Trump and his legal team are using Bannon’s media strategy — “flood the zone with shit” with the help of Judge Cannon. Eventually this will only go so far — but justice delayed is justice avoided in Trump’s case.
The problem isn’t finding criminal activity to build a case against Trump and his associates — the problem is sorting through the sheer volume of it and making a clear-cut case when the man has spent a lifetime spreading bullshit around, and is making threats designed to incite stochastic terrorism and insurrection.
If Trump isn’t brought to trial for something, it’s definitely game over for the rule of law in America.