The federal grand jury reviewing evidence regarding the Justice Department’s investigation into former President Donald Trump’s handling of classified documents is anticipated to gather again in Washington in the upcoming week.
There have been reports that prosecutors working for Special Counsel Jack Smith have presented evidence and witness testimony to the grand jury for months.
It is still unclear whether prosecutors are ready to seek an indictment yet, and the Justice Department did not comment on the investigation’s status. However, according to NBC News and other sources, prosecutors will focus on two legal questions:
1) Did Trump unlawfully keep classified documents after leaving the White House?
2) Did he obstruct the government’s efforts to retrieve them later?
If Smith chooses to prosecute Trump, it would be a historical first.
As this extraordinary legal case progresses, paying attention to what is known and what is still yet to learn is essential.
What are the Facts in the Trump Case?
In June 2022, federal agents traveled to the former President’s home in Florida to retrieve documents from his time in the White House, at least some of which they believed to be classified. Trump’s attorneys turned over 38 classified materials to authorities and certified in writing that they’d done a diligent search.
After visiting Mar-a-Lago and obtaining evidence that additional classified documents had not been returned, Justice Department officials obtained a search warrant from a judge, and FBI agents searched Mar-a-Lago in August 2022. In total, the DOJ recovered more than 300 documents with classified markings.
Trump’s attorneys previewed their defense case in a letter to Congress this year, writing that the documents ended up in Florida because White House staff had “simply swept all documents from the President’s desk and other areas into boxes.” But it’s unclear whether Smith’s probe has unearthed evidence to the contrary.
Which Crimes Will Trump Potentially Facing Charges for?
Clues about what actual crime or crimes Smith has been investigating can be found in court filings, including the search warrant and an accompanying affidavit submitted by the DOJ.
Prosecutors cited the Espionage Act, which criminalizes anyone with “unauthorized possession” of “national defense” material and “willfully” retains it.
A string of court decisions has concluded that even if a document isn’t technically “classified,” someone can be charged under the law, so long as the information is “closely held” and the information would be useful to U.S. adversaries.
Justice Department attorneys also raised the prospect of an obstruction-related crime in court filings. But that law only applies if prosecutors show that Trump intended to “impede, obstruct, or influence the investigation.” If Trump is charged with obstruction, it will be important to see what specific evidence Smith’s team has gathered about the former President’s intent.
Prosecutors also don’t have to limit their case to the crimes explicitly outlined in the search warrant.
What is Trump’s most likely defense?
Former President Trump has claimed he had the power to declassify anything he wants, even after leaving office. However, national security lawyers argue that his argument is legally unpersuasive, as his broad power to declassify materials ended once he was no longer President. Moreover, even if he had declassified information in his mind, he would have still needed to effectuate that decision meaningfully.
Many have pointed to the fact that Smith could avoid a battle about whether the documents were declassified by charging under the law regarding national defense material. However, Trump would still likely argue he held onto materials he believed he had the right to possess.
On an obstruction charge, Trump could argue that he relied on the advice of others, believed his team was complying with demands to return the documents, or others, like his valet Walt Nauta, who moved the boxes, went rogue.
Where are Trump’s legal vulnerabilities?
Mary McCord, a former Acting Assistant Attorney General for National Security, claims that Trump being unaware of how the documents ended up at Mar-a-Lago contradicted the fact that he retained them despite repeated requests from the government to return them. McCord explained that if Trump had returned the documents immediately after the Archives requested them, there would be no discussion of criminal responsibility. Additionally, recent news reported by CNN about Trump discussing a classified document he kept after leaving office and wishing to declassify it further undermines his case.
McCord believes this recording indicates that Trump knew unauthorized individuals could not be shown documents.
It may also counter any defense that Trump may present about having previously declassified everything he took after leaving office.
Do Trump’s Motivation for Keeping the Documents Matter?
Legal experts have claimed motivation doesn’t matter in this case. Even if Trump kept classified documents in Florida as a memento of his time as President, he could still face criminal charges.
This was demonstrated in 2017 when the Justice Department charged Harold Martin, a former defense contractor, for improperly retaining national defense information. Although there was no evidence that Martin intended to share the information with anyone, the amount he had stored at his home was described as “breathtaking.”
The former U.S. attorney who prosecuted Martin, Robert Hur, is a special counsel investigating President Joe Biden’s handling of classified materials.
Could Trump’s Case Go to Trial Before the Election in 2024?
It’s possible that Trump’s legal team would contest and delay any charges brought against him. They may file pre-trial motions to have the case dismissed and, if unsuccessful, could file appeals that would prolong the legal process in addition to a trial in March 2024 regarding hush money.
