It gives me no joy to write this piece.
Even a cursory examination of the redacted version of the affidavit submitted in support of the government’s request for a search warrant at the home of former President Donald Trump reveals that he will soon be indicted by a federal grand jury for three crimes: defense information (NDI), giving NDI to those not legally entitled to possess it, and obstructing justice by not returning NDI to those legally entitled to retrieve it.
When he learned through a phone call that 30 FBI agents were at the front door of his Florida residence with a search warrant and decided to reveal it publicly, Trump assumed the agents were looking for top secret classified documents they allege. which he possessed criminally. His assumptions were apparently based on his instincts and not on a sophisticated analysis of the law. Hence his public boast of having declassified all the formerly classified documents he carried with him.
Unbeknownst to him, the authorities had planned such a defense and were not preparing to charge him for possession of classified documents, even though he had hundreds of voluntarily handed over documents marked “top secret”. It doesn’t matter if the documents have been declassified, because the feds will charge crimes that don’t require proof of classification. They told the federal judge who signed the search warrant that Trump still had NDI in his home. It seems they were right.
Under the law, it does not matter if the documents on which NDI is contained are classified or not, because it is simply and always criminal to have NDI in a non-federal establishment, to ensure that those who do not have no security clearance move it from place to place, and hide it from the feds when they ask. In other words, the lack of classification – for whatever reason – is no defense against the charges that may be brought against Trump.
Yet, by misinterpreting and underestimating federal authorities, Trump has actually done them a favor. One of the things they have to prove for each of the three crimes is that Trump knew he had the documents. The favor he did was to admit it when he bragged that they were no longer classified. He committed a mortal sin in the world of criminal defense by denying something for which he had not been charged.
The second element that the federal government must prove is that the documents do contain national defense information. And the third thing they have to prove is that Trump put those documents in the hands of those who aren’t authorized to have them and stored them in a non-federally secure location. Intelligence community experts have already reviewed the documents seized from Trump’s home and are prepared to tell a jury that they contain the names of foreign agents secretly working for the United States. It is the crown jewel of government secrecy. Additionally, Trump’s home in Florida is not a designated secure federal facility for the filing of NDI.
The most recent aspect of the case against Trump that we learned from the redacted affidavit is the obstruction allegation. This is not the obstruction that Robert Mueller claimed to have found Trump to have committed during the Russia investigation. This is a more recent obstruction law, signed by President George W. Bush in 2002, that places far fewer burdens on federal authorities to prove. The oldest law is that alleged by Mueller. It qualifies as penal any material interference in a judicial function. Thus, one who lies to a grand jury or prevents a witness from testifying commits this variant of obstruction.
But the Bush-era law, the one authorities are considering charging Trump with violating, makes it a crime of obstruction by failing to return government property or sending the FBI after the goose. wild looking for something government owned that you know you have. This law does not require the pre-existence of a judicial procedure. It only requires that the defendant have government property, know that they own it, and groundlessly resist government efforts to recover it.
Where does all this leave Trump? The short answer is: in hot water. The longer answer is this: he is once again confronting the federal law enforcement and intelligence communities for which he has rightly expressed such public contempt. He had valid speaking points during the Russia investigation. He has little ground to stand on today.
I have often argued that many of these laws that the federal government has enacted to protect itself are morally unjust and unconstitutional. One of my intellectual heroes, the great Murray Rothbard, taught that government protects itself far more aggressively than it protects our natural rights.
In a monumental irony, Julian Assange, the WikiLeaks reporter who exposed US war crimes during the wars in Afghanistan and Iraq, and Edward Snowden, the former National Security Agency employee who exposed the government’s massive criminal surveillance of the American public, are accused of the very same crimes that are likely to be committed against Trump. On Assange and Snowden, Trump argued that they should be executed. Fortunately for all three, these laws do not provide for the death penalty.
Rothbard warned that federal authorities were aggressively protecting themselves. Yet both Assange and Snowden are heroic defenders of freedom with valid moral and legal defenses. Assange is protected by the Pentagon Papers case, which insulates the media from criminal or civil liability for revealing stolen cases to the public, as long as the revealer is not the thief. Snowden is protected by the Constitution, which expressly prohibits the warrantless surveillance he exposed, which was the most massive abuse of governmental power in peacetime.
What will Trump say to defend himself from taking national defense information? I can’t think of a legally viable one.