Much as we want the Department of Justice to charge Donald John Trump for his possession and misuse of classified government documents, that prosecution might be just the case Donald John Trump needs.
Trump took possession of classified documents, stashed them at various locations and his people helped conceal that he did so. Visitors had access to those locations. A Trump aide, once a former WH intern currently with a Trump campaign PAC, had a laptop with one or more classified folders scanned onto it and copied them to a thumb drive. Count those as one egregious national security breach after another.
So scholars, editorialists and many commentators here argue it is past time for Merrick Garland to hold Trump accountable. Top Secret, Secret and Confidential documents are in a daily media drumbeat — How they are created and designated, preserved, handled, disposed of and accounted for. How cavalierly Trump has flaunted them, flouted them, too. How different that was from other breaches of document security by Joe Biden and Mike Pence after they were VPs.
Consider the prosecution. The DoJ would be teeing up an ex-President for felony-grade jail time based on his utter lack of regard for papers and materials dealing with vital national interests. However, one Federal agency after another didn’t feel those papers and materials were important enough to control handling and preservation and account for their disposition. For quite a while, apparently, no official acted on the fact they were missing … if anyone who was important enough knew.
Now consider the defense. An ex-President, his political and legal fortunes fading, competitors asserting themselves. Unable to regain traction with the public, he is mired in a fragmented Party that is searching for issues to succor its base and to keep hold of would-be voters wavering on the margins.
Whatever could Trump do if DoJ mounted a Federal case over documents? Well, he could put the government on trial.
A prosecution of the litigation-prone Donald Trump over folders and papers would offer him an ideal pulpit and ignite his moribund campaign. (If he could get the case in a court in central Florida where most of the documents at issue were found, the exposure could be a win-win for Trump in Gov. DeSantis’s home state.)
Defendants in criminal cases get discovery of the government’s case. The prosecution can thereby be put on the spot to make admissions. Public disclosures could buttress an ages-long foundational plank of the Republican Party — how huge, inept, intrusive and overbearing the Federal government is.
In his first year in office, President Obama signed Executive Order 13526 specifying the current levels of classification: Confidential, Secret and Top Secret. To further limit access, gloss can be added by using the term “SCI”—“sensitive compartmentalized information”— or by adding codeword restrictions to the title. Hillary Clinton’s infamous emails reportedly contained classified information. Asked about them in a Fox News Sunday interview on April 2016, President Obama said:
“There’s classified, and then there’s classified.” He went on, “There’s stuff that is really top secret, top secret — and there’s stuff that … you might not want out on the transom … but is basically stuff that you could get in open source.”
In a Slate article about that interview, Fred Kaplan reported:
“Confidential” is so meaningless that Gen. James Clapper, director of national intelligence [2010-17], recently proposed eliminating the label. “Secret” isn’t much more serious: When I [Kaplan] joined a congressman’s staff many years ago, I was granted a provisional secret clearance while awaiting the results of my security investigation.
The Washington Post: “According to an Office of the Director of National Intelligence report from 2019, the last year for which data was published, nearly 3 million people had access to confidential or secret documents. More than 1.25 million people had been issued clearance for top-secret documents.” In his recent book The Declassification Engine, Columbia History Prof Matthew Connelly argues at length that America over-classifies information, thereby keeping citizens in the dark about things that deserve light.
Think of the number of disaffected government employees, ex-employees and contractors who might be willing to step out and testify to disclosures of secrets once thought to be classified.
We all laughed when Trump told Sean Hannity he could declassify secret material “just by saying ‘It’s declassified’”, without following any process and “even by thinking about it.” Yet in a world where practicalities can outrun legalisms, Presidents must have that latitude. A small example: In conversation with an ally or a foe, for example, we can’t reasonably expect a President to apply to a functionary to get approval to disclose classified intelligence. Another example is Joe Biden’s lawyer rationalizing that documents discovered recently at his home from his days as VP were “inadvertently moved”. Consider the classic cross examination of witnesses who have to concede some error, a glitch or a hiccup in the scope of things. Such details cast doubt, undermining “facts” otherwise accepted as beyond dispute.
There is another gap, a big one, in the government’s potential case. The warrant originally authorizing the search of Mar-a-Lago was for documents possessed in violation of the Espionage Act enacted in 1917. Northwestern Law Prof Heidi Kitrosser is a scholar of secrecy law. She concludes:
The part of the Espionage Act that is likely most relevant in this case is § 793(d). It applies to individuals who lawfully accessed material:
“relating to the national defense,” and who proceeded either willfully to convey it to “any person not entitled to receive it,” or willfully to “retain[] the same and fail[] to deliver it on demand to the officer or employee of the United States entitled to receive it.”
Trump — and personnel responsible to him as he was leaving his office and thereafter — seems to have violated that statutory language. But Kitrosser raises a concern:
Still, the Trump saga highlights the act’s extraordinary breadth and the consequent need for reform. Section 793(d) effectively draws no distinction between a spy, a whistleblower, and a former president who hoards highly sensitive national security information for his own amusement or private gain.
Therein lies a crucial question for the prosecutor. Is there proof that Trump used or disclosed this material for personal gain or leverage? (“Amusement” possibly, but I don’t see a conviction based on hoarding information “for his own amusement”.) While commercial gain may not be a required element of a crime under the Act, the lack of it is a theme the defense is likely to harangue and jurors will surely ponder. Trump is legendary for magnifying his Executive powers and acting to privatize their value. It would be significant if such a motive is absent in a documents case against him.
Bottom line. Does Donald John Trump’s assemblage of secret papers and materials constitute a case important enough to prosecute the ex-President? It certainly calls attention to classification law routines and procedures, just as Obama tried to do in 2009. Or maybe like weather balloons and other unidentifiables, secrecy for security reasons eludes specification. A legislative-style inquiry, one conducted with its own levels of secrecy for obvious reasons, seems more justifiable than trial in a criminal court. And much less dangerous as a politicking rally cry.