LEE KRAMER'S ROOM: With Views

[Susie924]

Opinion

By Andrew Weissmann and Ryan Goodman
June 7, 2023 at 8:31 a.m. EDT
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A special counsel indictment of Donald Trump for mishandling classified documents is looking likely. If it happens, it would mark the first federal prosecution of a former president in U.S. history. It would also be a teaching moment, here and abroad, for the importance of the rule of law.
We believe that the rule of law requires that Trump be charged, based on the wealth of publicly available facts and the history of the Justice Department charging people who did far less. Just last week, a former Army lieutenant colonel was sentenced to three years in prison for illegal retention of classified documents.
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If special counsel Jack Smith hands down an indictment, we will be keeping an eye on many open issues that might indicate how strong a case the government believes it has. Here is what is on our checklist of things to note:
1
Retention vs. dissemination
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Look to see whether the charges include not just illegal “retention” of national defense information, but also a separate allegation of “dissemination.” Both charges are violations of the Espionage Act and are central to U.S. national security law and protecting the country’s most sensitive secrets. But a dissemination case is particularly egregious, as an illegal retention case deals only with the risk of improper dissemination, not the actuality. To date, what is in the public record does not indicate that charges for dissemination are warranted, but an indictment may be revelatory.

2
Obstruction only
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Examine whether Smith decides to jettison all Espionage Act-related offenses and charge only obstruction offenses. Such a slimmed-down approach could be aimed at differentiating the Trump prosecution from the apparent facts in the Biden and now-closed Pence investigations. All three involve improper possession of government documents, but only Trump’s case raises the issue of obstruction of justice.
Wild card: If the Justice Department alleges that Trump or his aides were involved in tampering with Mar-a-Lago video surveillance footage, that is as acute a form of obstruction of justice as the allegedly false June certification that represented that a diligent search for responsive documents had been performed and all such documents returned.
3
A “speaking indictment”
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An indictment does not have to spell out the alleged facts; it just needs to track the legal elements of a criminal charge. However, to explain to the American public why this is a righteous case, this indictment could (and should) be what is known as a “speaking indictment” and lay out specific obstruction evidence, such as former White House counsel and personal Trump lawyers advising the former president to return the documents; Trump’s reported efforts to hide documents at Mar-a-Lago (and elsewhere); and any specific lies Trump told or caused to be told to the National Archives and Records Administration, the Justice Department and even his own lawyers.
4
Strength of the evidence
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Prosecutors often use a speaking indictment to show the strength of their case, sometimes to provoke a guilty plea, other times to induce people to cooperate and, in this instance, to gain public support for such a historic indictment. Look to see whether the indictment references “hard” evidence — such as audio recordings and written documents (e.g. emails, letters, and contemporaneous notes) — evidence from firsthand witnesses, and even co-conspirators who might have admitted their guilt already (as in a plea agreement).
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Information already made public suggests this may be an overwhelming case, but a speaking indictment should provide chapter and verse on any alleged obstructive conduct.
5
Content of classified information
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We will be keeping a close eye for how highly sensitive the information in the government documents Trump kept was. What subjects do the documents concern — Iran’s missile program, possible war plans, a foreign country’s nuclear capabilities, U.S. intelligence on China, etc.? Do they reveal information about U.S. surveillance capabilities, sources and other intelligence methods?
Recall that there are various levels of classification, up to top secret, with subcategories for particularly sensitive information. The government sometimes deliberately avoids basing charges on the most sensitive documents, so as not to have to reveal those publicly in court. For the information to be publicly charged, the intelligence community will presumably need to have agreed to its use in open court.
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In the weeds: If highly sensitive documents do appear, it may be because the intelligence community believes that information has already been compromised, because the information was highly sensitive at the time but has lost significance — or because the government is prepared to risk exposure of some highly sensitive information to secure a conviction in such a serious case.
6
Motive
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Although the government need not usually prove why a defendant committed a crime, motive evidence can be powerful to a jury. It helps jurors understand why a defendant would engage in unlawful conduct, producing a persuasive narrative — and can foreclose routes for defense counsel to raise reasonable doubt. Evidence of especially crass or illicit motives can also shape how jurors consider the case.
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Does the indictment allege Trump used the classified information as a means of settling scores with perceived enemies (e.g. the audiotape about a potential Iran attack and Joint Chiefs of Staff Chairman Gen. Mark A. Milley), had a narcissistic belief that laws simply do not apply to him in or out of office (Trump’s statement to Sean Hannity) or something even more pernicious, such as potentially using them to court financial favor (Saudi Arabia financial deals).
Of course, Trump could have several motives, and different ones for different documents. Does the special counsel spell out his theory?
7
Conspiracy
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Will Trump be the sole defendant or will others be charged? There are several implications if the special counsel charges a conspiracy. First, a coordinated scheme would make this case more egregious than the average case in which the DOJ has pursued charges under these national security statutes. Second, charging others would raise the prospect of flipping them into government cooperators. Finally, conspiracy charges can expand the choice of venue where the government can try the case.
8
Venue
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Look for where the DOJ files charges — the District of Columbia, Florida or New Jersey. What’s at stake in this decision is the jury pool, with Florida being the most favorable turf for Trump. The Justice Department, by contrast, is likely to want to bring the case in the District.
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Several of the issues identified above implicate where the prosecutors can file the case. If the charges included conspiracy, illegal removal of government records from the White House or obstructive activity that occurred in the District, the prosecutors’ hand would be strengthened in claiming that the nation’s capital is the appropriate jurisdiction.
If the case were one solely of illegal retention, then Trump has the best argument that such charges must be brought in Florida (or wherever else he kept the documents).
9
Classified documents charges
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As many legal experts have been saying for months, the potential criminal law violations at the heart of the case — including the three crimes alleged in the search warrant for Mar-a-Lago — do not require proof that the documents were classified.
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However, several important national security crimes do address only classified documents — 18 USC 798 and 1924. Look for whether the special counsel brings such charges. If he does, it is a show of force implying that prosecutors have a strong hand and won’t blink in the face of Trump’s and his attorneys’ implausible claims of “declassification.”
10
Bedminster
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Look for whether the alleged facts include documents at Trump’s golf club in Bedminster, N.J. The presence of documents at that location would probably drive a hole through some of Trump’s main public defenses — especially his claim that the National Archives-Government Accountability Office is responsible for having brought the classified records to Mar-a-Lago. If Trump is alleged to have personally handled documents at Bedminster, it’s difficult to conceive how his claims about how the documents were brought to Florida have any relevance.
11
The judge
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A key question is how fast the case will move toward a trial and verdict. That will turn a lot on the particular judge assigned to the case. Many judges will want to permit the electorate to know the outcome of this criminal case before casting a vote. And, of course, to afford the defendant his day in court in advance of the election.
The case against Trump involves alleged violations of national security laws that are core to keeping national secrets and our country safe. To win public acceptance for such charges, the Justice Department should do everything possible to be transparent about its proof — and about why Trump is being treated the same way anyone else would be who had behaved this way.
It’s called the rule of law.

https://www.washingtonpost.com/opinions/2023/06/07/justice-department-trump-indictment-possible-details/