According to people familiar with the case, the federal grand jury hearing evidence as part of the Justice Department investigation into former President Donald Trump’s handling of classified materials is likely to meet again in Washington this week.
The Special Counsel Jack Smith’s prosecutors have been presenting evidence and witness testimonies to the grand jury for several months. However, based on observations made at the courthouse or from sources, activity has slowed down in recent weeks.
At this stage, it’s not clear if prosecutors will seek an indictment. The Justice Department refused to comment on the current status of the investigation.
According to NBC News, and other media outlets, prosecutors are faced with two main legal questions: 1. Did Trump retain classified documents wrongfully after he left White House? He then obstructed the government’s attempts to retrieve those documents.
Smith’s decision to indict Trump would mark the first time that a former President has been charged with federal crimes. Although Trump has been accused in New York of state crimes related to the hush-money payments, these cases are vastly different.
Trump insists that he’s not broken any laws, and continues to slam Smith as well as the Justice Department. He dismisses the investigation and calls it a political smear. What we know and don’t, and what you should be watching for in this unique legal case.
What is the truth?
Federal agents visited the Florida home of the former president in June 2022 to retrieve documents, some of which were classified, from his tenure in the White House. Trump’s lawyers turned over to authorities 38 classified materials, and certified that they had done a thorough search.
Justice Department officials visited Mar-a-Lago, and after obtaining evidence that classified documents were not returned, obtained a warrant from a court and FBI agents searched Mar-a-Lago on August 20, 2022. The DOJ recovered over 300 documents marked with classified markings.
In a letter sent to Congress in this year by Trump’s lawyers, they outlined their defense. They wrote that the documents were found in Florida after White House staff “simply swept documents from the president’s desk and various other areas into boxes.” Smith’s investigation may have uncovered evidence that the opposite is true.
What crimes can Trump be accused of?
Court filings can provide clues as to what specific crime or crimes Smith is investigating, such as the search warrants and affidavit provided by the DOJ. Two categories are distinguished: crimes involving the handling of classified materials and crimes involving obstructing investigators in retrieving these materials.
The Espionage Act was cited by prosecutors, which is a statute that conjures an image of a person acting as a snitch for a foreign nation. The law enacted in the aftermath of World War I is more expansive. The law criminalizes “unauthorized possession” and “willful” retention of “national defence” material. In a series of court rulings, it has been determined that even though a document may not be technically classified, someone can still be charged if the information contained in the document is “closely kept” and useful to US enemies.
In court filings, Justice Department lawyers also raised the possibility of an crime related to obstruction. This law applies only if prosecutors are able to prove that Trump intended to “obstruct or influence” the investigation. It will be crucial to know what evidence Smith’s team has collected about Trump’s intention if he is charged with obstruction.
The search warrant does not limit the prosecutor’s case to crimes that are explicitly listed in it. The Washington Post recently reported that Trump had “sometimes” shown classified documents to other people. This raises the possibility of him being charged under a different statute: ” Disclosure of classified Information“, which prohibits revealing classified material to those who are not authorized to see it.
What is Trump most likely defense?
Trump claimed after the raid that he has the authority to declassify any document he wishes, that he has a “standing orders” to declassify the documents, and that by simply ” thinking it ” he can declassify the materials.
Most national security lawyers believe that Trump’s argument, while it’s unique – no former president has ever made such allegations or been accused of this conduct – is not legally persuasive.
After he left office, his broad authority to declassify material ended at 12 noon on January 20, 2021. Let’s say, just for argument sake, that Trump was declassifying information in his head as he flew from Washington to Florida. Bradley Moss, an attorney at Moss Law Firm, says that he still would have needed to implement this decision in a meaningful way.
A verbal order is not enough. A tweet doesn’t do it. Moss, speaking to NBC News, said that there must be documentation from the agencies confirming what has been declassified. If not, then anyone who sees it will still be required to treat it classified.
Many have noted that Smith could avoid the battle over whether the documents had been declassified if he charged under the law about “national defense” materials, but Trump will still argue he kept onto materials he thought he was entitled to possess. Moss said that “His best defence is that he did not realize the documents were classified because he did not pack them up.”
Trump can argue, in response to an obstruction charge that he relied upon the advice of others or believed his team was complying the demands for the return of the documents. Or, he could claim others such as his valet Walt Nauta who moved the boxes went rogue.
What are Trump’s legal weaknesses?
Mary McCord is a former acting assistant attorney general for national security at the DOJ, and a contributor to NBC News/MSNBC. She says that Trump’s claims of ignorance about the way the documents reached Mar-a-Lago, are undermined by his refusal to return them even when the government asked him repeatedly for them.
McCord stated that “he had received both a request for information and a subpoena.” If the Archives had said they needed the documents and he returned them immediately, then we would not be discussing criminal responsibility.
But that’s just the beginning. The recent news reported first by CNN of Trump speaking on tape about a document classified he kept even after leaving office, and wishing he’d declassified, also hurts Trump’s case in significant ways. McCord said that the tape “kind of locks him in.” It shows that he knows he cannot show documents to anyone who is not authorized.
The recording can also be used to counter any argument that Trump may make about declassifying everything he did after leaving office.
What is the motivation of Trump for keeping these documents?
No. Moss stated that “motivation is irrelevant.” Moss said that motivation is irrelevant.
The Justice Department in 2017 charged Harold Martin with improperly keeping national defense information. Martin did not intend to share any of the information with anyone. However, the amount of data he kept at home was described by the Justice Department as ” staggering.” Roberthur is the former U.S. Attorney in Maryland who prosecuted Martin. He now serves as special counsel to investigate President Joe Biden’s handling of classified material.
Can Trump’s case be tried before the election of 2024?
Even without an indictment, it’s hard to know. It’s obvious that Trump’s team will fight any charges, and they’ll undoubtedly try to delay the trial.
They would probably file several pre-trial motions in order to dismiss the case. If that didn’t succeed, his lawyers could file an appeal, which would prolong the process even more.
Trump has already been charged in the New York hush-money case. We may soon find out if Trump will face another trial.
