Trump indictment likely
When prosecuting cases involving mishandling sensitive information, the Justice Department will look for aggravating factors: Did the defendant sell the documents? Did he intend to use them for some other purpose (e.g., blackmail)?
Obstructing an investigation into snatching top-secret material is certainly the sort of aggravating factor that would draw the department’s attention. And former president Donald Trump, according to the latest news reports, seems to have done just that.
The Post reports: “A Trump employee has told federal agents about moving boxes of documents at Mar-a-Lago at the specific direction of the former president, according to people familiar with the investigation, who say the witness account - combined with security-camera footage - offers key evidence of Donald Trump’s behavior as investigators sought the return of classified material.” Such skullduggery would explain, in part, the need for a search warrant.
Directing employees to move documents sought by a subpoena is the sort of damning evidence one rarely sees in federal prosecution. “The employee is unlikely to be charged if he continues to cooperate,” former prosecutor Renato Mariotti tweets. “But his testimony suggests that Trump tried to keep documents from the DOJ, which had already served a grand jury subpoena for the documents *before* the employee was ordered to move them.”
Mariotti continues: “This testimony, combined with other facts (such as the false certification to the DOJ) suggests an effort to hide the documents from the federal government. This evidence is an aggravating factor that could weigh in favor of charging Trump.”
Such conduct would not only fit the definition of an “aggravating factor” for an Espionage Act indictment but, if true, likely constitute a separate crime of obstruction. (This would explain the reference to the section of the U.S. Code relevant to obstruction in the application for an affidavit.)
Simply put, “the evidence of both the document crimes and obstruction keeps getting worse for Trump,” Norm Eisen, a former co-counsel for the House impeachment managers, tells me. This takes the facts out of the realm of “I didn’t know what was in the boxes” or “It was a mistake” and further into the realm of criminal intent, Eisen explains. Active concealment, which is what the news reports indicate happened, is classic evidence of “consciousness of guilt.” (It also further debunks the notion that Trump magically declassified the documents at some point.)
Whether for the public at large or a potential jury, the Justice Department is going to seek to make sure there is no hint of political payback in prosecuting a former president. It’s this sort of egregious evidence of intentional wrongdoing that would distinguish Trump’s situation from a “document storage dispute,” as some Republicans have tried to categorize the Mar-a-Lago case.
Eisen asks rhetorically: “If the attorney general will countenance this … will we even have a rule of law left?” For someone who so obviously believes in the rule of law, Attorney General Merrick Garland seems like the last person to look the other way.
And with one (or more) of Trump’s lawyers already providing evidence to the Justice Department, it’s looking unlikely to impossible that Trump will be able to come up with a viable defense. The question increasingly is not whether the former president will be prosecuted, but where and when.