Accountability is the foundation of a law-bound society. When criminal misconduct by the powerful goes unpunished, belief in obeying the law is undermined.
On Tuesday, the Department of Justice laid out damning new details in its latest legal filing regarding the court-authorized Mar-a-Lago search, details that make it clear that Donald Trump likely committed serious felonies. In the DOJ’s new court papers responding to a Trump lawsuit requesting a special master be appointed to look through the seized documents, the DOJ provided photo and documentary evidence of this extensive lawbreaking.
First, there was a photograph of several classified documents—including at the top secret level— that had been found in Trump’s personal office drawer and placed on the floor for photographing. Further, the DOJ presented to the public for the first time the June affidavit from Trump’s lawyer swearing explicitly, and falsely, “on behalf of” Trump that “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings” had been turned over to investigators in response to a lawful subpoena.
The DOJ further reported that when FBI agents came back to perform the court-authorized search of Mar-a-Lago on August 8 after evidence emerged that the affidavit was false, “over one hundred unique documents with classification markings—that is, more than twice the amount produced on June 3, 2022, in response to the grand jury subpoena—were seized.” Finally, the DOJ stated that it had evidence that “that government records were likely concealed and removed” as part of an effort to obstruct the DOJ’s investigation. Again, this is quite the damning list of evidence of Trump’s wide-ranging criminal misconduct.
Given that accumulating evidence, some federal indictment seems increasingly likely. But whether Trump will pay any real price depends on when Attorney General Merrick Garland proceeds and what he charges.
To have a reasonable chance of imposing effective sanctions, Garland should focus on the relatively straight-forward offenses that prompted the Mar-a-Lago search and on securing an indictment by mid-November, after the midterm election when DOJ might be perceived, falsely or not, as interfering in that race.
If DOJ waits much longer past this date to indict, even if a conviction occurs, Trump’s appeal might not be complete before this administration ends. If a MAGA Republican President is inaugurated on January 20, 2025, a pending appeal would likely be aborted. An incomplete appeal would result in the conviction of any defendants in this case being erased and Trump escaping any accountability once again in a way that would further devastate the rule of law. A new president’s pardon without Trump serving any jail time would have the same effect.
Notably, these risks are considerable with a prosecution that waits to also charge offenses connected to attempting to overturn the 2020 election as part of the Jan. 6 insurrection plot. Those crimes raise complex legal and factual issues that could easily take 20 months to get to trial. If the investigation requires until January 2023 to complete and to result in indictment, a trial would likely be set for summer 2024, a fraught time considering the presidential election campaign.
That trial could be further delayed, but if it went forward it might stretch for months. If a conviction resulted, an appeal would not be completed before a new president might abandon it.
To avoid that result, the Justice Department should indict Trump by mid-November for crimes connected to the improper taking and retention of defense-related documents, including those marked as classified, some at the highest level of secrecy. Such a trial could finish by late 2023. An appeal, particularly if expedited, could be resolved before the presidential inauguration. At that point, Trump would see the inside of a jail cell for at least some time if he were convicted.
Three factors make a strong case for indicting Trump solely for such crimes.
First, Trump’s fingerprints are on them. On August 23, the Washington Post reported that former White House staffers told the FBI that “Trump … personally overs[aw] his collection of White House records” and micro-managed the documents at Mar-a-Lago. The latest DOJ filing showing that records were found in a drawer in his personal office intermingled with personal items, such as his passports, further underscores this point.
Second, the crimes are serious. The redacted Mar-a-Lago search warrant affidavit made public on August 26 revealed that materials previously recovered from Trump’s Florida resort included 25 Top Secret documents, some involving human intelligence sources – possibly undercover agents embedded in foreign countries. Their disclosure could get these individuals killed and at the very least would harm national security by eliminating them as sources of information.
Third, the redacted affidavit revealed in court last week included evidence showing that the removal of government records from the White House was intentional, as was their later concealment and the refusal to relinquish them. The affidavit portrayed Trump’s team stalling during the government’s 20-month effort to obtain voluntary return. The Trump lawyers’ false representation in June that no classified information remained at Mar-a-Lago was evidently the last straw.
The DOJ could charge the willful removal of official government records from an office of the United States. The maximum penalty for that violation is three years’ imprisonment.
In addition, 18 USC §641 authorizes up to a 10-year sentence for anyone who “knowingly converts to his use … any record of the United States.” In law, conversion means taking another’s property intending to use it for oneself.
Violations could also be charged under the Espionage Act, which criminalizes failing to return materials “relating to the national defense”—whether classified or not—upon request by an authorized government official. In Tuesday’s filing, the government revealed that the relevant documents contained classified markings and that at no point prior to the search did Trump or his attorneys make the claim that any of the documents had been declassified by Trump while he was president, under a since-claimed “standing order” or otherwise.
Charging this crime, however, virtually guarantees that Trump’s lawyers will try the so-called “graymail defense.” In cases involving national security secrets, defendants typically claim that full documentary disclosure to the jury is necessary because to convict, jurors must be persuaded that serious information was taken. Under the Classified Information Procedures Act, the government sometimes is successful in sidestepping a “graymail” defense by describing the documents without detail. The tactical decision about whether to charge an Espionage Act violation in Trump’s case is one that prosecutors who know the evidence can best make.
There are also the very clear obstruction charges, the evidence for which was laid out directly in Tuesday’s DOJ filing. Those crimes are serious and may be the easiest to prove in court. The department, however, will want to consider whether charging those crimes risks bringing the charges in a less favorable jurisdiction than D.C.—where the national security charges might be brought. The obstruction charges may well require the case be moved to the Southern District of Florida where Trump’s home is, the search took place, and he is likely to find a more friendly jury pool.
As for prosecution of the Jan. 6–related crimes, they can be charged later, when the prosecution is ready, accepting the risk that a new administration could scuttle the charges.
Few people appreciate more than Garland that the world is not a perfect place, that choices must be made, and costs borne in pursuing the priority of real justice. Here, the priority is true accountability for Trump, meaning the possibility of criminal conviction.
That calls for focusing on how to reach a final judgment before the opportunity escapes. Securing the foundation of our law-bound society depends upon it.