Andrew McCarthy thinks it is an open question, and one that will not be decided on the basis of whether he is guilty or not.
Here is what most jeopardizes the former president at the moment: When we are asked to ponder the question of whether Trump is likely to be indicted, the answer no longer calls for an assessment of the evidence. The Justice Department undoubtedly figures it has sufficient evidence to indict and convict. At this point, it is a question of prosecutorial discretion — not can the Justice Department prove the case, but rather is there more downside than upside to filing criminal charges?
....On the other side of the discretion ledger, Trump has two things going for him: Hillary Clinton and 2024.
Clinton could similarly have been charged with mishandling national-defense information, destroying government records, and obstruction in 2016. The FBI conceded that her behavior had been recklessly irresponsible. Yet, the Obama–Biden Justice Department let her off the hook. Even Republicans who have no use for Trump are irate over the double standard: Trump may bring it on himself, but he is hounded while Clinton is insulated; the Capitol rioters may be numbskulls, but the earth is scorched to nail every last one, even those who did nothing more than parade through the rotunda, while the Biden Justice Department coddles radical left-wing lawyers who firebombed a police car and a left-wing rioter who lethally torched a building.
Remember that while this may generally be a small potatoes item blown out of proportion of taking records to his personal residence, it is not under discussion who owns them. The American people own those documents and presidents do not have the right to pretend otherwise.
So, what has been past practice regarding presidential records? What has been past practice as regards their classification and declassification? There is the written law and then there is precedent and practice.
I do not know the answers to these questions. A just approach to these record keeping questions should be aware of both the law and precedent.
Unless this is just a case of "any stick to beat a dog."
The Democrats will indict him, convict him, imprison him, and kill him.
Andrew McCarthy: Clinton could similarly have been charged with mishandling national-defense information, destroying government records, and obstruction in 2016.
In the Clinton case, the government did not have "sufficient evidence to indict and convict." Evidence of intent would have been required for successful prosecution. All the evidence pointed to typical leakage of classified information into emails, and Clinton used the secure State intranet system extensively to protect classified information.
Thomas: So, what has been past practice regarding presidential records?
If it was just the presidential records, it's doubtful that there would be a prosecution. It's possible that, even after the search warrant, there would not have been a prosecution. The government may have been happy to just get the documents back. It was Trump who made the search a public spectacle.
It’s important to keep in mind that classification is an administrative procedure. Classification tells government employees what documents are relating to the national defense. Unintentional mishandling of classified information can result in administrative punishment, but generally not in criminal prosecution.
The Espionage Act does not hinge on classification. To prove a violation of the Espionage Act requires showing the information is, in fact, relating to the national defense; and that the person so charged knows that the information is relating to the national defense. The classification markings can be used as evidence of willfulness, but classification markings are neither sufficient nor required for conviction. See 18 U.S.C. §§ 793.
Trump was subpoenaed for “any and all” documents marked classified. Trump’s lawyer certified that they had surrendered all such documents. That certification was false. Documents marked classified were found in a known location with clear markings, including in Trump’s desk with his passport, and constitutes strong evidence of obstruction. See 18 U.S.C. §§ 1519.
Documents produced by government employees remain government property, including documents marked classified—even if Trump had declassified the documents *in his mind*. All government documents should have been surrendered to the National Archives when Trump left office. See 18 U.S.C. §§ 2071.
In this case, Trump clearly tried to withhold documents marked classified in defiance of a subpoena, and it is almost certain the government can show the documents marked classified were "relating to the national defense".
Trump acted criminally. The real question is why and is he still is possession of other sensitive documents.
A question from European (even if only an geographical sense): if US president decides documents should be declassified, is there any procedure, government body or persone who can legally forbid him/her from doing that?
szopeno: A question from European (even if only an geographical sense): if US president decides documents should be declassified, is there any procedure, government body or persone who can legally forbid him/her from doing that?
Classification is an administrative procedure whereby the executive branch of the government marks sensitive information so that they know what needs protecting. The procedure is currently defined by Executive Order #13526. The president can change the procedure by issuing a new executive order, though it has to be otherwise consistent with the law. For instance, some secrets are protected by statute, not by executive classification.
If the president were to order that a document be declassified, it starts a bureaucratic process in the various departments involved. Most such orders have caveats, so it can take some time for the process to occur. (Here is an example of such an order by Trump, so he knows how it works.) It takes more than thinking about it, of course. It's an administrative process, so an order has to be issued to the bureaucracy. If just thinking about it were sufficient, then no one could possibly know what is or is not classified, no one could be held to account, and everything would be subject to disclosure under the Freedom of Information Act.
Let's say, for the sake of argument, the president is bonkers, and declassifies sensitive information that protects human intelligence sources. (Trump has publicly claimed that he declassified documents found at Mar-a-Lago, including documents marked as protecting human intelligence.) People die. Well, that would ultimately be the fault of those who hired him, the American people.
(This is separate from the legal questions about Citizen Trump and violations of statutes detailed in our previous comment.)
I don't believe any evidence regarding intent is necessary to charge and convict someone with a security clearance of mishandling classified documents. It's just rare that DOJ charges someone without evidence of intent, so it's DOJ discretion, as I understand it.
Also, for a Secretary of State, aren't all work-related email by law required to go through the State Dept. system? So her use of a private email system for work was also illegal, wasn't it?
Thomas Doubting: I don't believe any evidence regarding intent is necessary to charge and convict someone with a security clearance of mishandling classified documents.
Classification is an administrative function. The law doesn't allow the government to stamp whatever it wants then charge you for disclosing it. That would give the extraordinary power to bureaucrats and to politicians attempting to silence dissent.
Gorin v. United States found that "scienter and bad faith" must be present for conviction inder the Espionage Act. Under the act, it's not the classification that makes disclosure illegal, but whether or not it is "relating to the national defense." Classification is how the government marks such documents, so the markings are prima facie evidence, but markings are not legally necessary nor sufficient.
Consider a case of a clumsy worker who accidentally drops a folder and spills out national security information in the hallway where unauthorized persons might see it. That would be an administrative infraction, not a criminal act. But if it wasn't accidental, but willful, then it could result in being charged under the Espionage Act.
Thomas Doubting: Also, for a Secretary of State, aren't all work-related email by law required to go through the State Dept. system? So her use of a private email system for work was also illegal, wasn't it?
That confuses policy with law. By policy, classified information is not supposed to be sent by email, whether dotgov or not. Classified information is supposed to be sent only by secure intranet, but exceptions are made in the policy for when other means of communication are not available. Furthermore, classified information has a way of finding its way into emails all the time. It's a constant problem in government. For instance, the Clinton emails contained discussions of drone programs in foreign countries which were classified but were also published in the New York Times. The reason they were classified is so the U.S. government could avoid answering questions about them in order to avoid causing problems for the foreign government.
See 18 U.S. Code § 793.
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