Prosecuting Trump for Mishandling Classified Materials
It's complicated, hard to prove, and politically fraught.
The DOJ has a policy of not commenting in the middle of an investigation. I see a lot of Republicans (but not just Republicans) calling on the DOJ to explain what it’s doing here given the unique circumstances. Do you think it should? And do you think it might do that?
No, I don’t think they should comment. And it’s for the reason that Trump is entitled not only to privacy on this matter but to a presumption of innocence. To disclose during an ongoing investigation, where there has been no indictment yet, details about what they’re investigating would prejudice not only Trump but a potential jury pool. If there is enough to bring a charge, they bring a charge and speak to the public through the indictment and what comes out during the trial. If they were to do it publicly, now, it would prejudice the entire process and violate any number of due-process principles that, ordinarily, Republicans are always talking about.
In fairness, while it was always a strong concern of mine, it’s never been a major concern for Republicans writ large, who tend to err on the side of the police rather than those under investigation.
Do you see any significance in the fact that Trump hasn’t made public the warrant that he must have received, which would presumably list what the FBI was after and what it took from Mar-a-Lago?
This is the scam that Trump runs. By concealing the actual documentation, he and his allies can portray the whole situation however they want. They can throw innuendo and accusation out there; they can do everything they can to rev up their base. Their media allies, especially on Fox, OANN, and Newsmax, were all over the place with every wild accusation under the sun. And here’s the thing. If any of those accusations that we’re hearing from Trump lawyers had a modicum of merit, there would’ve been emergency motions for temporary restraining orders to enjoin the FBI from going through everything; there would’ve been motions to suppress the warrant itself. This is what actual lawyers with credible arguments would be doing right now, not going on TV and leveling innuendo and accusations. But because they don’t have anything to really rely on, they don’t take that step. As people like Sidney Powell and her team of crack lawyers have learned, you can’t play the cable-news game in court.
This is a strong point that ties in with the previous one: Trump and his allies are making hay of the fact that DOJ is forbidden from saying what they were looking for yet, even though Trump’s attorneys have a copy of the warrant, they’re not showing it to us precisely because doing so would undermine their claims.
It gets better:
I was thinking of famous examples of classified information being mishandled by former national security adviser Sandy Berger, David Petraeus, Hillary Clinton. Obviously, none of these people are ex-presidents — is there any direct analog with other public officials to what Trump may have done? And what ended up happening in those cases?
Petraeus and Berger are two of the more high-profile incidents. With Petraeus, part of the issue was that he was storing classified notebooks in his attic. The misdemeanor he pled guilty to is now a felony under a law that Trump signed in 2018. That was part of the fallout from the Hillary Clinton saga. One of the things that Republicans were upset about was that the provision most likely to be invoked was only a misdemeanor at the time. So they modified it in 2018 to become a felony going forward.
Aside from the true but shopworn point that Trump and his inner circle routinely committed violations of national security law and norms far greater than those for which they wanted to see Hillary Clinton locked up, Republicans actually pushed very hard to turn what had been misdemeanors into felonies and Trump himself signed this into law.
Here, though, it gets dicey:
The other examples have been individuals who aren’t high-profile public officials but mid-level bureaucrats at several agencies who have been prosecuted and either pled guilty to or been convicted of removing classified documentation and storing it in unsecured locations. But by and large, the government usually does not prosecute those cases, because they find it sufficient to simply fire the employee and revoke their security clearance. They do choose sometimes to pursue criminal prosecution in certain circumstances when they believe the offense is egregious enough. A criminal prosecution for removal of classified information requires a more complicated criminal proceeding that involves what’s known as the Classified Information Procedures Act and allows all sorts of classified discovery to the defendant. That’s not something the government likes to do all the time. So, often, they exercise their discretion not to prosecute, but they certainly have done so in the past.
It’s a weird Catch-22 in our system. When very senior people commit these offenses, we tend to treat them leniently for a variety of reasons. Petraeus had decades of honorable service, so letting him off with a relative slap on the wrist—and essentially ending his chances to serve in more senior positions—seemed like the right thing to do. Clinton was both a former First Lady, a senior cabinet official, and the Democratic nominee for President; there was simply no way she was going to be charged for relatively minor violations of the law. At the same time, absent truly grave danger to the national security, there’s just not much point in bringing the hammer down on more junior folks. Simply stripping them of their security clearance ends the threat.
Trump’s lawyers may argue that he’d already declassified the documents in question before his presidency ended. I don’t quite understand why we don’t know whether he declassified them a year and a half after he left office.
The reason we don’t know is because Trump’s administration was chaotic and completely incompetent at basic administrative duties.
Correct. Which, ironically, works in their favor here.
So yes, this will be their likely defense. It’s an uncharted issue of law, because there’s never been a president who’s been prosecuted for this. The president of the United States and only the president of the United States has a unique authority when it comes to classification and declassification. The president is the ultimate authority, without scrutiny or any oversight, of what is classified and what is declassified. He can share properly classified information with anyone he wants with impunity. No one can oversee it. That’s his constitutional authority under Article II. But if you do choose to move to declassify something, there are procedures and security-classification rules as to how you do so. It can’t be as simple as Trump looking at a box of documents and saying, “I declare them declassified.”
Every single document has to be specifically identified, and a procedure has to be followed to declassify it, because every single classified document is logged. The way it works is that you have a cover page that indicates the classification for the document. You have classification markings at the top and bottom of each page, and you have a stamp on every classified document that indicates when it was classified, by whom and under what authority in the executive order, and when the classification ends. When you declassify something, you have to address all of that for each document. Not only do you have to mark out the markings, you have to stamp it “Declassified” and say who declassified it, under what authority, and when. Until you do that, no matter what verbal order Trump may have given, the document is still to be treated as classified.
So, look, Moss is a leading expert in national security law and I am not. But I’m not sure he’s right here.
He’s absolutely describing how the classification process is supposed to work. And, indeed, it’s how it actually works for the little people. But, rather obviously, it’s not how it works—or even can work—for the President.
In the case of a normal President—say, Joe Biden—we simply trust his judgment. If he’s in a meeting with, say, the Canadian Prime Minister or the President of Ukraine, and he decides that he simply has to share some intelligence that’s marked TOP SECRET, or even SECRET NOFORN, it’s his call. He doesn’t need to mark the documents down first. Indeed, he doesn’t even have to go back and have somebody change the classification level later. If the President decides someone without the proper clearance has a need to know, he can share it.
Now, actually permanently declassifying documents is less exigent and, theoretically, the process Moss describes should indeed be followed. But neither the President of the United States nor his senior-most staff is going to personally execute the markup or even file the paperwork necessary to get lower-level folks to do it. Unlike us peons, they’re not even required to take the necessary training to know that they’re supposed to follow these procedures.
Again, in a normal administration this is all irrelevant. There will be professional staffers to take care of this sort of thing. But, if Trump declared these documents declassified, they’re declassified.
Do I think he actually did declare them declassified? Nope. But it would be next to impossible to prove he didn’t.
His successor, presumably, could re-classify them and demand he turn them over. But there’s no way in hell he’s going to try to prosecute Trump for taking them in the first place.
That doesn’t sound like the level of attention to detail the Trump White House was known for.
Correct. And that will possibly be his downfall here. The unresolved issue is, if he thought these documents had all been declassified, does that undermine the intent element for some of these crimes? It certainly will be a fascinating legal debate in pretrial motions.
I was going to ask how his defense on this would hold up in court, but I guess it depends on what we learn about these procedural issues.
There is not a lawyer alive who can tell you with any complete certainty how that would play out, because there is no precedent. There is zero precedent for when a former president is accused of having mishandled classified information. We are in completely uncharted territory. Everyone is speculating, giving their best professional opinions, but no one knows how the initial trial-court judge would rule. No one knows how the appellate court, which would certainly be involved if Trump loses, would rule, and no one knows how the Supreme Court would rule.
Moss is thinking like a lawyer here. This is ultimately a political call, not a legal one. And, again, I find it unfathomable Biden would let his Attorney General go forward with a prosecution simply on the grounds of mishandling classified documents, delightfully ironic though it would be.
Ultimately, Moss agrees:
What do you think happens next?
The FBI will go through all the records. They’ll see if what they’ve collected corroborated their concerns that additional classified documents had been stored at Mar-a-Lago, and they’re going to have a choice to make. They’ve been doing interviews for months. They’ve been collecting information. They’re gonna have to decide, first, whether there’s a criminal case to bring under any of the provisions we’ve discussed. And second, is it rock-solid enough to bring against a former president — keeping in mind the potential declassification defense he’s almost certainly going to raise in pretrial motions. That is ultimately not just a legal question but a political one. I would not be surprised to see that question brought all the way up to the attorney general himself for a final decision.
Again, I think the decision will go one notch higher than that. If Garland decides that there’s not strong enough a case to prosecute, Biden will absolutely back that. If Garland wants to prosecute, though, he’s going to have to persuade Biden that he’s got the goods.
Nobody, not even the President, is above the law. If it can be proven that he committed serious crimes, he should absolutely be prosecuted, the optics of charging the sitting President’s political nemesis be damned. That’s especially true if they have the goods on him with respect to the Capitol riot. But there’s no way in hell he’s charged with even an egregious mishandling of information he had a plenary right to handle as he saw fit.