It’s Time to Indict Donald Trump
The long saga of the government’s nearly two-year effort to identify and retrieve classified documents (among other government property) stolen by ex-president Donald Trump on his way out of the White House has become a farce.
The slow drip of information about Trump’s mishandling of those documents, which has lately become a gusher, seems to have had a hypnotic effect on the public. Each new piece of information is duly reported, but quickly cedes its place in the news cycle to the next one. The collective public reaction has become more “That’s Trump for ya!” than “Why isn’t this man in jail?”
He should be.
Take a step back. Get away from the drips and look at the complete picture revealed by a timeline of the saga of the stolen documents. Ask yourself, “What would the government have done to me if I had done this?”
Trump leaves office, taking with him a truckload of government property including hundreds of documents bearing classification and “top secret” markings.
There was reportedly no attempt to keep a record or catalogue of the classified materials Trump removed from the White House. To this day, there is no complete record of everything Trump took with him.
A full year after leaving office, Trump returns some of the documents. According to the National Archives, in January 2022 Trump’s legal team transferred some fifteen boxes of records from Trump’s residence at Mar-a-Lago to the custody of the archives. The provision of the documents followed “ongoing communications with the former President’s representatives throughout 2021 about what appeared to be missing Presidential records.”
The records included classified national security information “up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials,” meaning some of the nation’s most closely held secrets.
According to “multiple people briefed on his efforts,” in late 2021 Trump personally went through the boxes stored at Mar-a-Lago before they were turned over to the archives. Sources informed the Washington Post that “Trump himself eventually packed the boxes that were returned in January,” and that Trump seemed determined to declare “that all material sought by the archives had been handed over.”
According to the Washington Post, Trump dictated a statement dated February 7 that he had returned “everything” the archives had requested. The draft letter was never released over concerns by some of his legal team that it was not accurate. He asked one of his lawyers, Alex Cannon, to send a similar message to the archives, but she refused, unsure that the statement would be truthful. Around the same time, Trump told aides that the documents in the boxes were “newspaper clippings” and not relevant to the archives.
May 11, 2022
The Department of Justice serves Trump with a grand jury subpoena. The subpoena calls for, among other things, “any 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. . .”
According to a Department of Justice court filing, the subpoena was necessary because “the FBI developed evidence indicating that even after the Fifteen Boxes were provided [to the archives in January] . . . dozens of additional boxes remained” at Mar-a-Lago.
June 3, 2022
According to the DOJ filing, on June 3, in response to the May 11 subpoena, Trump’s lawyers turned over “a single Redweld envelope, double-wrapped in tape” to a DOJ attorney and FBI agents who had arrived Mar-a-Lago at the request of the Trump legal team.
The documents in the envelope had not been included in the fifteen boxes of materials turned over to the archives in January.
That same day, before the government officials left Mar-a-Lago, Christina Bobb, a Trump’s lawyer identified as his custodian of records, provided the DOJ with a sworn certification that after a “diligent” search, “any and all responsive documents” had been turned over to the government.
“Responsive documents” means responsive to the May 11 grand jury subpoena. By certifying that “any and all” responsive documents had been turned over, Bobb is making a sworn statement that all documents “bearing classification markings,” the language used in the subpoena, had been turned over.
Keep in mind that documents “bearing classification markings” are not the same thing as “classified documents.” Documents “bearing classification markings” are easily identified on the face of the document; they either bear such markings or they don’t. No judgment is involved in identifying them. “Classified documents,” in contrast, may or may not bear classification markings, and even documents with such markings might not still be classified if they had been declassified at some point after the markings were placed on them.
Since the subpoena specifically requested documents “bearing classification markings,” not “classified documents,” it makes absolutely no difference whether Trump somehow declassified them, as he has sometimes claimed. Whether he did or not—and the argument that he did is so far-fetched that none of his lawyers was willing to represent in court that he declassified anything—wouldn’t change the fact that the documents “bear classification markings.”
Although Bobb signed the certification, it was reportedly drafted initially by another Trump attorney, Evan Corcoran, who had conducted the search. Bobb, apparently somewhat uncomfortable with the truth of the statement, added the hedge that the certification was “based upon the information that has been provided to me.”
Time will tell whether that hedge keeps Bobb out of trouble. I doubt it. When attorneys submit sworn statements that are based on information provided to them after having conducted a diligent search, such statements carry far more weight than “Well, somebody told me.” The statement carries an inherent meaning that rigor was applied to the search, and the speaker has a sound basis for making it.
“Evan told me so” isn’t likely to get a sympathetic ear at the DOJ.
August 8, 2022
The FBI arrives at Mar-a-Lago to execute a search warrant issued by the United States District Court for the Southern District of Florida.
The search turns up a massive trove of some 13,000 documents that had previously not been provided to the government by the Trump legal team, reportedly including more than one hundred bearing classification markings, eighteen of which are marked “top secret.”
The documents recovered during the search reportedly included highly sensitive intelligence regarding Iran and China that, if disclosed, could expose intelligence-gathering methods. At least one of the documents describes Iran’s missile program. The risks posed by unauthorized disclosure of the documents include endangering the lives of people aiding U.S. intelligence efforts.
This, after Trump had repeatedly asserted, once by a sworn certificate from his legal team, that all documents bearing classified markings had already been returned in June.
The New York Times reports that a top Justice Department official told Trump’s lawyers “in recent weeks” that the DOJ believed that Trump still had not returned all of the documents he took when he left office.
December 7, 2022
It turns out that the DOJ was right. Two more items marked classified were reportedly found after a search of a storage unit in West Palm Beach. The search was conducted by an outside team hired by Trump’s attorneys after Chief U.S. District Judge Beryl Howell, who is presiding over the secret grand jury proceeding, admonished Trump’s legal team to continue the search for government documents taken after he left office.
The significance of the discovery of these two classified documents isn’t just that Trump had yet again failed to turn them over almost two years after he had left office, nearly a year since he supposedly returned everything, more than six months after his lawyers certified that they had turned over everything in response to the grand jury subpoena, and some four months since the FBI executed the Mar-a-Lago search warrant. That, as they say on Passover, would have been enough.
But there’s much more.
The greater significance of this disclosure is that the newly revealed classified documents came from a different location—not the White House, but an office in Northern Virginia used by Trump staffers—and they were transferred to a different location—not Mar-a-Lago, but a storage unit in West Palm Beach.
The fact that Trump kept classified materials at locations other than the White House and moved them to locations other than Mar-a-Lago raises not only ongoing concerns as to whether there’s still more out there, but it also exponentially complicates assessment of the national security risks.
New questions abound: Which Trump staffers had access to these materials when they were still at the White House? How were they packed up? How were they transferred from the White House to the Northern Virginia office? Who had access to them during the transfer? Once they arrived at the Northern Virginia office, who then had access to them? What kind of security was in place at the office?
Then wash, rinse, and repeat the same questions regarding the transfer of the materials from Northern Virginia to the West Palm Beach storage unit.
December 8, 2022
The Washington Post and other outlets report that federal prosecutors have asked Judge Howell to hold Trump in contempt of court for failing to comply with the May subpoena. The request concerns, at least in part, the Trump legal team’s refusal to designate a custodian of records to certify that all classified materials have been returned to the government.
Trump’s legal team has refused to sign such an assurance, taking the position that such a request—commonplace in federal subpoena enforcement actions—is “unreasonable.”
In what might be the mother of all understatements, people familiar with the matter reportedly say that some of Trump’s lawyers are, in the Post’s paraphrase, “wary of making any claim under oath based on Trump’s word alone.”
Is there at this point really any room for doubt that there are solid legal grounds to indict Donald Trump with respect to the stolen documents? The government’s May search warrant cited three criminal statutes:
- 18 U.S.C. 793(e) makes it a crime punishable by a fine and/or imprisonment of up to ten years to have unauthorized possession of any document relating to the national defense or to willfully retain such a document and fail to deliver it to the officer of the United States who is entitled to receive it.
- 18 U.S.C. 1519 subjects any person who knowingly conceals a document with the intent to impede, obstruct, or influence an investigation to a fine and/or imprisonment of up to twenty years.
- 18 U.S.C. 2071 provides that any person who willfully and unlawfully conceals any document deposited in any public office shall be fined and/or imprisoned for up to three years. It also provides that any person who commits those acts shall “be disqualified from holding any office under the United States.”
Trump’s conduct appears to check every one of those boxes.
And those are not the only criminal charges available to Special Counsel Jack Smith. Harvard’s Laurence Tribe, writing with Dennis Aftergut in The Bulwark, survey other charges, including analysis of where they might be brought.
The good news is that Smith seems to be fully on top of the case. His seeking to hold Trump in contempt is a good sign, and his reported issuance of subpoenas to local officials in other Trump-related investigations sends a strong signal that he’s deadly serious and not wasting any time.
And late Thursday evening, the United States Court of Appeals for the Eleventh Circuit removed the only remaining obstacle to the special counsel’s investigation of the stolen documents. The court brought an end to the special master’s review, ordered by a Trump-friendly district court judge, of the documents seized at Mar-a-Lago. Smith is now free to use everything seized at Trump’s resort, classified or not, in his criminal investigation.
So, at long last, it is time to indict Donald Trump.
If it were you, you’d already be in jail.