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When news broke Wednesday about a “target” letter from Special Counsel Jack Smith in the Mar-a-Lago classified documents case, it was clear to legal experts that Donald Trump would soon be the first former U.S. president to face federal charges. Then, on Thursday night, Trump just “Truthed” it out.
As reporters scrambled to learn more, it quickly emerged that the number of federal counts was 7 and that these charges were for anything from willful retention of national defense information, to obstruction, to false statements. We know this, as well, because Trump lawyer Jim Trusty confirmed it on cable news last night.
How we got here
Amid the National Archives’ and DOJ’s months-long quest to recover dozens upon dozens of “missing” presidential records spanning hundreds of pages — some of the documents with the “highest levels of classification” — the FBI searched Mar-a-Lago in August 2022. The feds were looking for “All physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§ 793, 2071, or 1519.” They also sought “Any evidence of the knowing alteration, destruction, or concealment of any government and/or Presidential Records, or of any documents with classification markings.”
In a court filing, the feds included an image of “top secret” and “secret” documents spread out on the carpet at Mar-a-Lago.
18 USC § 793, more commonly known as the Espionage Act, criminalizes the “gathering, transmitting or losing” of national defense information, including “willful” retainment of such materials when the government is “entitled to receive it”:
(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or
Notably, the Espionage Act’s § 798 also criminalizes “knowingly and willfully” disclosing such materials to “an unauthorized person,” which could be a problem for Trump is there is truth to reports about him showing classified materials to Mar-a-Lago guests. CNN reported early Friday morning that prosecutors have Trump on a 2021 tape saying that he had “secret” military documents about attacking Iran that he could have declassified, but didn’t.
“As president, I could have declassified, but now I can’t,” the report quoted Trump, undermining the oft-repeated-but-never-supported explanation that he declassified the materials — in his head.
“Secret. This is secret information. Look, look at this,” he allegedly said on tape. “This was done by the military and given to me.”
Much attention has been paid, as well, to an alleged “dress rehearsal” to move the documents before the FBI visited Mar-a-Lago, and a signed attorney declaration that falsely said the classified materials in question had been returned.
While 18 USC § 2071 pertains to the unlawful “concealment, removal, or mutilation generally” of U.S. documents, 18 U.S.C. § 1519 makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States.”
After the Mar-a-Lago search, a special master sideshow crashed and burned in federal court. While that was ongoing, Attorney General Merrick Garland appointed Jack Smith as special counsel and authorized him to investigate both the Mar-a-Lago case and “whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021, as well as any matters that arose or might arise directly from this investigation or that are within the scope of 28 C.F.R. § 600.4(a).”
With the special master issue out of the way, Smith was able to resume the Mar-a-Lago investigation in earnest, and news of the indictment rather speedily dropped just six months later.
What Jim Trusty said and did not say last night
Jim Trusty told CNN’s Kaitlin Collins that the DOJ sent the Trump legal team a summons telling them to appear in South Florida federal court at 3 p.m. on Tuesday. The lawyer said that he has not been provided the indictment itself, but that the summons received via email shed more light on the charges, specifying the aforementioned statutes 18 USC § 793 and 18 U.S.C. § 1519. Calling the Espionage Act charge “ludicrous,” Trusty said there were also charges for alleged “obstruction-based” offenses, false statements, and — he believed — a conspiracy charge (which, if true, by legal definition means two or more people are allegedly involved).
Trump attorney Jim Trusty joins for his first interview since Trump was indicted. There is:
— An Espionage Act charge
— Several obstruction-based charges
— False statement charges
— Is there a conspiracy charge in here? “I believe so, I don’t have it in front of me right now.” pic.twitter.com/8zOCynIygB
— Kaitlan Collins (@kaitlancollins) June 9, 2023
Much of Trusty’s time on live TV was spent alleging misconduct on the part of Jay Bratt, the Justice Department’s chief for Counterintelligence and Export Control Section National Security Division.
“He apparently, along with five other people in his presence from DOJ, extorted a very well-respected, very intelligent lawyer from Washington, D.C., saying, essentially, if you want this judgeship that’s on Joe Biden’s desk, you have to flip your guy to cooperate against the president of the United States,” Trusty claimed. “That should be a headline across the world.”
Trusty went on to claim that this allegation has been “basically sworn to,” and that the Trump team is “going to want some discovery about just how far-ranging this criminal activity was by a prosecutor.”
It behooves the reader to be mindful of the difference between out of court statements and statements made in court. Recall: After the 2020 election, the former president and his lawyers repeatedly and baselessly claimed outside of court that fraud flipped the election from Trump to Joe Biden. Once inside of court, however, lawyers refused to make such specious arguments before a judge — and they made sure to say “this is not a fraud case.”
The Mar-a-Lago case is so far being framed by the defense on TV as a prosecutorial misconduct case, so it will be interesting to see how much — if any — of that ends up finding its way into court.
Noticeably absent from the core of Trusty’s response to the indictment news were any claims of executive privilege or declassification.
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