The move is an indication that the indictment of the former president is imminent.
The move is an indication that the indictment of the former president is imminent.
F ormer president Donald Trump has been advised by the Justice Department that he is a target of special counsel Jack Smith’s Mar-a-Lago investigation.
The New York Times reported Wednesday evening that Trump’s lawyers were informed by prosecutors from Smith’s office that he is a target of their investigation into his mishandling of national-security documents and his obstruction of their work — which includes alleged concealment of documents and related misrepresentations to the grand jury.
In prosecutorial parlance, target is the most serious investigative status, denoting a person who is highly likely to be indicted. That status is distinguishable from a subject of an investigation, whose activities are being scrutinized by a grand jury and may result in charges. (The third status category is witness, which applies to a person who has relevant information but is not suspected of wrongdoing.)
Trump’s indictment in connection with the Mar-a-Lago document retention has, to my mind, been a matter of when, not if, since last September — two months before a special counsel was appointed. That was shortly after the Justice Department obtained a warrant from a federal magistrate judge in Florida, permitting the FBI to search his Palm Beach resort and estate, where they seized over 100 documents bearing classification markings. That, in turn, was two months after Trump’s lawyers — allegedly acting on information provided by Trump — falsely represented in a sworn statement to the FBI, for transmission to the grand jury, that the 38 classified documents they surrendered that day were the only ones remaining in Trump’s possession.
In early 2022, after nearly a year of wrangling with the National Archives and Records Administration (NARA), Trump surrendered 15 boxes of materials, a portion of the records that had been shipped to Mar-a-Lago after Trump left office in January 2021. Those boxes were found to contain 184 documents bearing classification markings, many of them designated at high classification levels that are assigned to intelligence deemed so sensitive that its falling into the wrong hands would gravely imperil national security.
Recent reporting indicates that the special counsel has obtained witness testimony to the effect that Trump was initially poised to advise NARA that these 15 boxes were the only presidential records in his possession. In the end, that representation was not made.
In total, over 300 documents bearing classification markings have been recovered from the former president since he left office — the 184 found in the first 15 boxes, the 38 documents surrendered on June 3, 2022, over 100 documents seized during the August 8 search of Mar-a-Lago, and a small number of documents later found by Trump’s legal team at a South Florida storage facility and returned to the government.
Trump has repeatedly insisted that he declassified these documents. It is a peculiar claim, for which there is no documentary evidence and which Trump’s lawyers have declined to repeat in court proceedings. In terms of national security, it would be scandalously reckless to have declassified top-secret documents for no better reason than to keep them as mementos, rather than return them to secure government intelligence files. Moreover, legally, even if Trump had declassified the documents, it would not be a defense against the charges he is likely to face.
The Espionage Act forbids the mishandling of national-defense information not classified information. Even if a document had been declassified, it would still be national-defense information if its contents bear on the national defense — i.e., a document’s classification status is merely evidence that it likely bears on the national defense, it does not settle the question. As for obstruction, in writing the grand-jury subpoena that Trump is alleged to have defied, prosecutors took pains to demand his production of documents bearing classification markings, not classified documents. If the documents were marked classified, the subpoena mandated that they be surrendered, regardless of whether Trump had declassified them.
The prosecution’s evidence appears to be strong — and on that score, note that even before the FBI recovered over 100 documents marked classified in the August 8 Mar-a-Lago search, a federal magistrate judge (who issued the search warrant) found probable cause to believe Trump had violated the Espionage Act and obstructed the investigation. Espionage Act offenses of the kind Trump is alleged to have committed are punishable by up to ten years’ imprisonment for each violation. Obstruction offenses can be punishable by up to 20 years’ imprisonment, and making false statements to a grand jury or federal investigators (or causing them to be made) is punishable by up to five years’ imprisonment.
As one would expect, Trump’s public defense to this point has primarily been that he is being selectively prosecuted.
In recent months we have learned that President Biden has illegally retained classified documents for decades, exhibiting gross negligence by keeping them in various unauthorized locations. Having appointed a special counsel for Trump’s document-retention case, Attorney General Garland had no real alternative but to appoint one — Robert Hur — for Biden’s document retention. But it is inconceivable that the Biden Justice Department will recommend Espionage Act charges (or even less serious charges for mishandling classified documents) against Biden. Just a few days ago, the Justice Department closed without charges an investigation of former vice president Mike Pence’s illegal possession of classified documents in his residence.
As I have repeatedly observed, the Biden administration has sought to distinguish Biden’s (and Pence’s) misconduct from Trump’s on the grounds that Trump fought the government’s efforts to recover its intelligence files and obstructed its investigation, whereas Biden was cooperative, voluntarily notifying the authorities and consenting to FBI searches of his homes and private office. (Pence did the same.)
Contrary to the impression Biden apologists have sought to convey, this actually would not be a defense against an Espionage Act charge — the crime occurs when a person entrusted with national-defense information exhibits gross negligence in mishandling it (e.g., storing it in an unauthorized location, such as one’s garage). But it is not unusual for the Justice Department to treat with kid gloves executive officials who violate the law, and then to mislead the public by exonerating these officials on the (legally irrelevant) ground that they did not intend to harm national security. By contrast, military and intelligence officials, as well as defense contractors, do get prosecuted for mishandling intelligence, even when it’s clear that they meant no harm to the country.
Trump’s best selective-prosecution argument involves Hillary Clinton. The former secretary of state set up an unauthorized, laughably insecure home-brew server system, which she used for years to conduct State Department business. This was a willful act: Clinton sought to defeat government record-keeping and record-disclosure requirements, including the mandate that officials conduct government business via government facilities — a mandate Clinton enforced on her subordinates as a cabinet secretary.
Because Clinton’s position was steeped in sensitive foreign-relations and national-security matters, by setting up an insecure email system, she was guaranteeing that national-defense information would be transmitted through it. Indeed, she used the system to communicate with President Obama, including from what the FBI gingerly referred to as “the territory of . . . an adversary” (which was probably Russia). The FBI found that classified information was stored in Clinton’s system, some of it designated at the highest level of sensitivity — the “Top Secret/Special Access Program” level. The bureau further acknowledged it was highly likely that Clinton’s system had been penetrated by hostile actors, including foreign intelligence operatives. When Clinton’s system came to light, she caused over 30,000 emails to be deleted and destroyed, even though a congressional subpoena had been issued for them.
Despite this yearslong sequence of significant offenses, incomprehensible breaches of trust, and obstructive conduct, the Obama-Biden Justice Department declined to appoint a special counsel or, ultimately, to prosecute Clinton. In fact, even after all the facts were exposed, both President Obama and then–vice president Biden endorsed Clinton for president and enthusiastically campaigned for her in her unsuccessful 2016 bid.
The Clinton precedent is a strong basis for Trump to argue that, in fairness, he should not be charged. Nevertheless, if he is charged, it will not be a legal defense at trial — although he will surely try to use it for jury-nullification purposes. At trial, the only issue for the jury will be whether Trump committed the offenses charged against him. It will be beside the point that someone else committed analogous crimes but was not charged.
The fact that Trump’s attorneys have been advised that he is a target — in essence, that special counsel Smith is far enough along in his investigation that he has concluded that Trump should be charged — indicates that the indictment of the former president is imminent.