Jurisprudence

How the DOJ Can Wriggle Out of This One

Prosecutors have three options in their Mar-a-Lago case—but only one of them is good.

Trump in a tuxedo at a party in Mar-a-Lago
Trump at his home on Dec. 31 in Palm Beach, Florida. Joe Raedle/Getty Images

The Justice Department’s failure thus far to indict former President Donald Trump for his unlawful possession of classified documents at Mar-a-Lago has been a real head scratcher. As I and other federal courtroom veterans have observed, the Mar-a-Lago matter is very much like a simple drug possession case, the easiest of all federal criminal cases to successfully prosecute. With Trump unable to deny that he actually possessed legally proscribed material, or claim he was unaware that hundreds of the documents he kept hidden were classified, the case against him is a slam dunk.

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Yet, more than five months have passed since the Mar-a-Lago search was conducted and no charges have been brought, and more than two months have passed since the 2022 midterm election was held, removing a DOJ internal guideline delay to indictment. The only significant Mar-a-Lago prosecutorial step known to have been taken since the Aug. 8, 2022, seizure was the Nov. 18, 2022, appointment of Jack Smith as special counsel.

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A likely explanation for why so much time has been needed has now emerged. We recently learned that on Nov. 2, 2022, DOJ was advised by President Joe Biden’s attorneys that a number of classified documents had been found in his Delaware office, and additional classified document discoveries at other Biden locations soon followed. The parallel to Mar-a-Lago, however distant, has placed the DOJ in an extremely difficult political position. Despite the clear differences between the matters—for starters, the fact that Biden’s staff, not a government agency, uncovered the problem, and instead of covering up, lying, and stalling, immediately reported the discovery to, and fully cooperated with, the DOJ and National Archives—an indictment of Trump for the Mar-a-Lago document possessions will surely prompt his followers to demand the same result for Biden. Suddenly, the political clouds that have loomed over the DOJ’s Trump investigations since their inception became even darker. Indeed, the enhanced political burden to avoid even the appearance of political preference in prosecutorial decision-making may have been the unannounced basis, at least to some degree, for Jack Smith to have been assigned his special counsel role in the first instance.

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So, if the Biden document revelations are the primary basis for post-election prosecutorial delay, where does that leave the Mar-a-Lago case? The DOJ seems to have three options going forward.

The first is to decline prosecuting any aspect of the Mar-a-Lago mess and focus legal attention toward Trump on the threats to democracy manifested by the Jan. 6 riot and his multifaceted attempts to overturn the 2020 election. In my view, this is the worst choice. Deep public skepticism already surrounds DOJ’s investigations into all things Trump, whether it is Mar-a-Lago, Jan. 6,, or his attempts to “find votes” or false electors to overturn the election.

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More than two years have passed since the Jan. 6 Capitol insurrection, and notwithstanding DOJ’s successful prosecution of hundreds of Jan. 6 rioters, including white nationalist leaders like Stewart Rhodes, a large segment of the American public remains concerned that DOJ is doing too little or acting too slowly, as none of the politicians involved with the insurrection, from Trump on down, have been held accountable. Multiplying these fears is the legend of Trump’s seeming ability to escape the consequences of his behavior no matter what. Not bringing any Mar-a-Lago charges reinforces public doubts about the DOJ’s overall inquiry, destroys the concept that no one is above the law, and reinforces the myth of Trump immunity.

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A second choice is to proceed as though there were no Biden possession analog and prosecute Trump for both crimes the Mar-a-Lago search warrant was predicated upon: his unlawful possession of classified materials and obstruction of justice in repeatedly attempting to thwart demands for their return. This would maintain the “slam dunk” drug possession nature of the prosecution, establish that DOJ is proceeding as legally required no matter what the politics may be, and that, in fact, no one, including Donald Trump, is above the law. There are, however, potential negative consequences to consider. First, the MAGA world would conflate what appears to be Biden’s negligence with Trump’s willful criminal intent and would scream for Biden’s indictment as well. A decision not to prosecute Biden would only provide an additional justification for Trump partisans to claim DOJ is politically motivated.

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Additionally, there is an overriding need to confront and prevent the escape of classified materials from government protection, whether intentional or not. Since the degree to which politics is allowed to interfere with a constructive and effective solution must be kept at a minimum, indicting Trump and not Biden for possessing classified indictments, even if legally justified, may well torpedo meaningful efforts to correct a significant problem.

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A third option, however imperfect, seems the most sensible: Indict Trump for obstruction of justice and not for possessing classified documents. While this approach eliminates his accountability for blatant criminal conduct and removes from a resulting trial the “slam dunk” nature of criminal possession charges, neither of these downsides is substantial enough to outweigh its benefits.

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First, while not as direct and bulletproof as the possession prosecution, the obstruction case is, nonetheless, quite strong. Among the witnesses available to testify are the National Archives personnel who made repeated attempts month after month to get Trump to return the records and were put off and lied to. They initially were given some 20 boxes of records, claimed by the former president to be the total amount. Subsequent attempts to recover additional records that the National Archives knew to be missing were thwarted, resulting in the issuance of a subpoena. In response to the subpoena, Trump produced an additional 38 documents, again sworn to be the full amount possessed. The Mar-a-Lago search ultimately produced more than 11,000 additional documents, including hundreds marked classified. There is also the testimony of Trump’s janitor who moved cartons of these materials to different Mar-a-Lago locations at Trump’s direction during this time, adding specific cover-up activities to the case. There is more: The numerous Trump lawyers and staff members involved in the matter will complete the obstruction narrative. What would be the defense? Even if Trump would take the stand, a prospect I previously discounted in Slate as unlikely in the extreme, what could he possibly say?

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An “obstruction only” prosecution also rebuts any claim that Trump was prosecuted for the same conduct for which Biden was given a pass, as neither will face those charges. Moreover, given that a federal obstruction conviction carries a 20-year maximum prison sentence, it should also satisfy complaints that narrowing the charges allows Trump to escape the consequences of his conduct. Finally, by eliminating the possession of classified document charges, the political temperature might be lowered enough to allow Congress to find a reasonable and effective way to address the underlying classified records security problem. All of that is well worth it.

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