Reviews | Why the Trump Documents Case Really Looks Like a Drug Lawsuit
Not all crimes are that complicated. As a junior prosecutor, I spent years investigating large-scale drug trafficking. In a narcotics case, if you possess heroin or cocaine, you are guilty. You can argue that you didn’t really know it was narcotics – you may have thought it was powdered sugar – but that’s rarely a viable defense. If the government can prove you were the drug smuggling guy, it’s over.
Most of the laws at issue in the Mar-a-Lago documents case are more like a narcotics case than a complicated case of bank fraud or obstruction of justice. Top Secret classified documents look a lot like narcotics from a criminal law perspective. You really don’t want to own them if you’re not allowed to. If you take Top Secret classified documents from a government facility and store them in your home, you are guilty.
According to the redacted affidavit just released for the August 8 FBI search warrant, in the 15 boxes removed from Mar-a-Lago in February, 184 documents bore marks indicating different levels of classification, 25 of them marked Top Secret. Some of these documents, according to the affidavit, related to human intelligence sources. The presence of so many sensitive documents in the first batch of boxes strongly suggests that the many boxes of documents later seized by FBI agents also include highly sensitive documents.
I am convinced that if the name of the accused was John Doe and not Donald John Trump, he would be accused in this case. Trump is obviously not a typical defendant. But its potential defenses are limited. He can argue, as he did, that the FBI concealed the documents. This will work about as well as when defendants claim the DEA planted drugs in their home. (That’s usually not the case.) He can also claim that he declassified the documents via an unwritten “standing order” when he was president, but as the DOJ recently pointed out, the laws at issue do not require documents to be classified if they are closely held national defense material.
The only viable defense Trump has is to point the finger at someone else — to claim that he is a hands-off administrator who has taken his word from his aides that none of the Mar-a-Lago documents are wrong. was in the hands of the government. But while two of the laws at issue require the government to prove the defendant intended to break the law, the DOJ’s repeated demands and demands of Trump — including a grand jury subpoena — will make it difficult for him to argue that he did not realize the files contained national security secrets that belonged to the federal government.
Trump’s defense should be that he has not read any of the government communications and that his lawyers told him that their meeting and communications with the DOJ indicated he was in the clear. He is expected to claim that the lawyers lied to him and that he never ordered one of the lawyers, Christina Bobb, to sign an apparently false statement to the DOJ that all documents “marked classified” had been returned to the government .
It is not uncommon for defendants to point fingers at professionals like lawyers and accountants. In my experience, lawyers distance themselves from the defendant and protect themselves whenever a defendant points the finger at them. I personally interviewed lawyers, as well as an FBI agent, and they dropped the defendant like a hot potato. This is also my experience in private practice. I usually warn clients that their lawyers and accountants will throw them under the bus.
Trump has inspired the loyalty of millions of Americans. But it remains to be seen whether the lawyers are willing to sacrifice their careers – and their freedom – to take the fall for him. If they don’t, Trump must be hoping Attorney General Merrick Garland will exercise restraint. For example, when General David Petraeus suppressed classified information and lied to the FBI about it, he was offered the opportunity to plead guilty to a misdemeanor. (Ironically, Trump signed into law a bill that made that same law a felony, and it’s unclear if there’s a misdemeanor that applies to his conduct.)
Many Trump defenders, such as former White House Chief of Staff Mick Mulvaney, have taken to downplaying the seriousness of the matter, claiming that “if it’s all about documents, it’s almost nonsense”. If there is no other alleged criminal activity, supporters claim, then the FBI’s search was an unjustifiable “overstep.” That’s like saying a narcotics case is only about drugs. In this case, it’s really just the documents. Trump had something he shouldn’t have had. And that’s a potential crime.
It looks like the Justice Department has the goods on Trump. Typically, a criminal defense attorney would try to make a deal in this situation. This may be the best decision left for Trump, even if he is not inclined to go down this route.