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Why the Trump Documents Case Could Really Bring the Former President Down
In the wake of Trump's recent indictment in Manhattan, speculation is already mounting as to which case will land him in hot water next. Among the potential issues at hand are Fulton County District Attorney Fani Willis's investigation into Trump's attempt to overturn Biden's Georgia election victory and Special Counsel Jack Smith's inquiry into the former president's involvement in the January 6th unrest and his removal of documents from the White House to Mar-a-Lago.
In a recent interview with ABC News' "This Week," former Attorney General Bill Barr expressed confidence in the government's evidence against Trump concerning the documents case. Barr characterized Trump as dodging investigators and attempting to manipulate the situation.
As for the documents Trump relocated to Mar-a-Lago, some Republicans argue that the former president had the authority to declassify whatever and whenever he pleased during his tenure. However, despite questions surrounding declassification protocol, it is noteworthy that investigators have not targeted Trump for possessing classified documents, thus potentially weakening this defense argument.
Contained within the search warrant for Mar-a-Lago were documents explicitly outlining the crimes under investigation involving Trump. The warrant lists seized property allegedly "illegally possessed in violation" of federal statutes 18 U.S.C. §§ 793, 2071, and 1519.
Of these statutes, the most significant is 18 U.S. Code § 793, commonly known as the Espionage Act. This act pertains to the unauthorized handling of documents and materials related to national security, particularly information with potential repercussions on the U.S. or that could benefit foreign nations. The classification of these documents would not be pertinent. The broad statute outlaws unauthorized possession, copying, and transmission of such materials, as well as their removal from appropriate custody. Violations of this statute may result in fines or up to 10 years imprisonment.
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Furthermore, 18 U.S. Code § 1519 prohibits the alteration or destruction of documents meant to obstruct or influence governmental matters or investigations, carrying penalties of up to 20 years in prison or a fine.
The final statute concerns the intentional concealment or destruction of government property, mandating fines or up to three years imprisonment. This statute also disqualifies violators from holding public office; however, although it would likely be contested in court, legal experts generally agree that it might not bar Trump from running for president in 2024.
Although the investigation at hand does not center on classified documents, the classified nature of some of these materials could potentially exacerbate penalties.
It seems that there may be considerable evidence supporting the notion of obstruction in the ongoing investigation by the Department of Justice (DOJ) and the FBI. Earlier this month, The Washington Post reported that sources familiar with the investigation have indicated that Trump personally examined some of the subpoenaed documents at his Mar-a-Lago home. This appeared to stem from a reluctance to part with certain items.
Despite Trump's team returning some classified documents following a May 2022 subpoena, the FBI's search in August uncovered more that had not been handed over. Furthermore, investigators have obtained additional evidence that Trump instructed others to deceive government officials in their efforts to retrieve documents prior to last year's subpoena. The Post highlights that this could signify Trump's intent.
The investigation has also resulted in the acquisition of emails and text messages from Molly Michael, a former assistant to Trump who left her position last year. These communications provide insight into Trump's activities and interactions, offering a clearer picture of his connections to the documents in question.
The prosecution would need to show that Trump had intent on taking and then hiding/concealing government documents related to US national security, that could have been a threat to us or of benefit to our adversaries in order to convict him of violating the Espionage Act. Obstruction charges could follow as it already appears that the government has evidence that he violated 18 U.S. Code § 1519.