The past week ranks among the most remarkable in American political history. On Monday, the FBI did the unprecedented and extraordinary: It searched, pursuant to a judicially approved warrant, the residence of a former president of the United States in pursuit of evidence of a crime. That night, Donald Trump went on the counterattack, issuing a statement charging that the search was politically motivated and an example of prosecutorial misconduct.
Now we know that the search produced top secret classified documents, reportedly including those relating to nuclear weapons, documents that a former president or anyone working for the government had absolutely no right to hold in his possession. We also now know the crimes that DOJ prosecutors alleged in an attachment to the search warrant. An independent federal magistrate judge authorized the warrant and found that probable cause existed to believe that these crimes occurred.
The offenses at issue are no small matter. They include the federal espionage act, which carries a maximum term of imprisonment of 10 years per document.
The search warrant does not mean that Trump will be charged with that offense, or even that he is the target of the investigation. The evidence gathered will help the Justice Department determine whether to charge him or anyone.
If so, the law would compel them to prove the criminal intent any statute charged requires. The espionage statute’s “state of mind” requirement is satisfied, among other intents, by proof that an accused person has “reason to believe” that documents or material unlawfully in his or her possession “could be used to the injury of the United States … ,” and “willfully retain[ed] the same and fail[ed] to deliver it on demand to the officer or employee of the United States entitled to receive it.”
Mar-a-Lago is not a secure environment, and in 2019, an alleged Chinese intelligence agent gained entry to the premises and, according to Politico, was caught “carrying four cellphones, a laptop, an external hard drive and a thumb drive later found to carry malware.”
As for Trump failing to return to the government documents held in an unsafe environment, it appears that in January, he gave back some but not all of the official government records that the National Archives sought after he had taken them upon leaving the White House. Then, in May or June, a federal grand jury issued a subpoena compelling Trump to produce whatever documents the subpoena specified. If we assume what seems likely—that the top-secret documents were so included—Trump’s failure to return them does not automatically prove that his retention was knowing and intentional—the definition of willfulness needed for any conviction—but it starts to come close.
The fact that on Monday, to retrieve the documents, the FBI had to enter Mar-a-Lago under judicial authorization strongly suggests that Trump had not performed a full search for every government document that did not belong at Mar-a-Lago there, or at least that he did not return the documents required. There are still facts that require investigation, but one can see the outlines of a strong criminal case being developed.
What could possibly justify Trump thinking that he could get away with failing to have such searches performed, if that is what happened?
Perhaps previous episodes of not being held accountable while president—including the Mueller probe and two impeachments—led him to believe he was untouchable and could recklessly fail to search for and return any documents on his premises.
Espionage was not the only violation that the FBI alleged in connection with the current search warrant. It also charged potential impeding or obstructing of a pending federal investigation by concealing documents relating to that investigation. That charge would apparently relate to the failure to return all of the documents immediately upon being requested or later upon being subpoenaed. Violation of the statute involved carries a potential penalty of 20 years in prison.
Third, the Justice Department alleged potential violations of the statute forbidding the willful and unlawful removal or destruction of evidence belonging to any office of the United States. The maximum penalty here is three years imprisonment.
We do not know the details of that allegation, but the fact that there was probable cause to allege it is a tantalizing detail about what the DOJ knows. News reporting has already indicated that the FBI had inside Trump’s circle a source of information about the existence and location of evidence at Mar-a-Lago. No doubt that the bureau has more information than is yet public.
A final point: The alleged statutory violations do not include any charge relating to mishandling of classified documents. That means that in the event Trump claims that he “de-classified” them, that claim would have no bearing on any charges under the statutes named in the warrant.
That a former president or his close associates appear to be under investigation for these charges is something that no one has ever seen in the 235 years that our nation has existed. We are in truly uncharted waters.