As this article was going to press, ABC News published a report that weeks before the Mar-a-Lago search, former President Donald Trump’s associate Kash Patel “vowed to retrieve classified documents from the National Archives and publish them on his website.”
If that scheme involved Trump himself and the Mar-a-Lago documents, it could have significant legal implications for the Justice Department’s ongoing criminal investigation. Any plan to release the documents could potentially trigger specific elements of the Espionage Act and other criminal statutes designed with the core purpose of preventing unlawful dissemination of classified and other sensitive government documents. As I discuss below, credible evidence of such a plan also would likely factor into the Justice Department’s decision on whether to bring criminal charges.
The ABC News report is based on an interview Patel gave in June. However, Just Security has collected six other interviews and statements in which Patel discussed and elaborated on this plan.
The June interview may be among the most innocuous. It suggested Patel would go to the National Archives to obtain the documents. Likewise, in another interview on July 4, Patel suggested his plan was to pressure the Archives to release materials in their possession. Less innocuous and far more incriminating, however, are other interviews in which Patel more explicitly discussed an effort to release documents housed at Mar-a-Lago.
Patel is no ordinary aide to Trump. During the Trump administration, he served as Deputy Assistant to the president, a job he reportedly “landed after Fox News host Sean Hannity took him to meet Trump in the Oval.” After the November 2020 elections, Patel was dispatched to the Defense Department as chief of staff to the acting defense secretary where, among other activities, he reportedly pursued the idea that Italian military satellites had been used to turn votes to Joe Biden in the presidential election, according to Jonathan Karl’s book and the House Select Committee hearings. Since leaving office, Patel has joined the board of directors for the former president’s media company, Trump Media & Technology Group. On June 19, 2022, Trump sent a letter to the National Archives designating Patel as one of the former president’s “representatives for access to Presidential records of my administration.” Patel claims to have been in the room when then-President Trump verbally declassified documents. He has often made other statements in right-wing interviews that anticipate and put forward Trump’s specific claims of innocence about the Mar-a-Lago documents.
The Dissemination Plan
When news of the Mar-a-Lago documents began heating up in May 2022, Patel spoke with right-wing media outlets about Trump’s objectives in retaining these documents. He began laying out the defense that the documents had been “declassified,” and specifically identified Trump’s goal to release the information publicly. He described the content of the documents to include matters related to the Russia investigation (Crossfire Hurricane), but also a much broader range of issues.
“It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance—anything the president felt the American people had a right to know is in there and more,” Patel told Bretbart on May 5. He also said, “Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves.”
That same day, Patel spoke with a right-wing video show and discussed Trump’s goal of “transparency” in releasing such information. He said:
Part of that transparency comes in the form of, you know, providing the American public with information that should never have been classified or kept from them in the first place. And what he did was on his way out of the White House, he declassified—made available to every American citizen in the world—large volumes of information relating, not just to Russiagate, but to national security matters, to the Ukraine impeachment, to his impeachment one, impeachment two.
All things that deep-staters, as you know, Buck, in government go in there and get their hands on and classify ’cause they don’t want the truth to get out ’cause it’s gonna make Trump look good ’cause he always supported the truth and the facts. And that’s what we have here is a whole slew of documents and information that President Trump wanted to put out.
“We’re hoping to get this information out soon,” he added.
In the June 21, 2022 interview covered by ABC News, Patel spoke about using his official status as Trump’s representative to the National Archives to obtain and release the documents. He said, “Now that I am now officially a representative for Donald Trump at the National Archives, I’m going to march down there—I’ve never told anyone this, because it just happened, and I’m going to identify every single document that they blocked from being declassified at the National Archives and we are going to start putting that information out next week.” It is notable that Patel promised to start putting out the information, even though his interviews were replete with references to the National Archives opposing such a move.
In a July 4 interview for another far-right media show, Patel referred to pressing the National Archives for documents on the Russia investigation to “be released because they are already declassified.” Referring to the Russia investigation, he said “the American public has only seen 60 percent of what we’ve been able to see;” “Why won’t they release the other 40 percent? … So I am going to continue that work at the National Archives, I apologize I can’t get it declassified overnight, but I’m on it.” At varying points in the interview, Patel appeared to maintain the line that the information was already declassified and at other times admit it was not.
Legal Significance
In a summary of the Espionage Act published earlier this week, the New York Times wrote, “It is not clear why Mr. Trump had classified documents at Mar-a-Lago. There is no evidence yet that he was planning to release the material.” If there were such evidence, it could have significant legal consequences.
Several federal criminal statutes make it illegal to remove, retain, or exercise gross negligence in storing government documents. However, the more serious crimes include deliberately planning to transmit classified or other highly sensitive materials to the public. The Espionage Act, for example, makes it a crime for anyone who “attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted” closely held national defense information “to any person not entitled to receive it.” A prison sentence of up to 10 years can be imposed for violations of the statute.
Professor of law at the University of Michigan and former U.S. Attorney, Barbara McQuade, told Just Security, “Disclosing classified information is a crime for good reason. Classified information is defined as information, the disclosure of which will cause damage to the national security of the United States. Disclosing classified information to refute links to Russia puts Trump’s personal and political interests before our country.”
The Congressional Research Service has noted that “no individual has ever been acquitted based on a finding that the public interest in the released information was so great that it justified an otherwise unlawful disclosure.”
If evidence emerges of a plan to release the Mar-a-Lago materials, it could also shape the Justice Department’s decision on whether to bring charges.
“Factors that traditionally weigh in favor of the discretionary decision whether to bring a criminal charge would include the nature of the government information stolen—for instance, is it vital national security intelligence—and what the person intended to do with it. Although DOJ need not wait until such information is disseminated to a third party, if that was intended or in fact occurred that would weigh in favor of bringing a charge,” Andrew Weissmann, a professor at NYU School of Law and a former General Counsel of the FBI with experience working on these national security investigations, said in an email to Just Security.
Because some of Patel’s comments appear to involve simply pressuring the National Archive to release certain documents, presumably pursuant to proper procedures, it remains to be seen how the Justice Department will choose to handle the case.
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