People who loathe Trump ask: Why hasn’t DOJ indicted Trump yet. Isn’t there a mountain of evidence proving guilt? The absence of an indictment is seen as Garlandian cowardice, typical liberal squishiness and the misplaced impulse not to offend Republicans. (Newsflash to Garland critics: He probably knows that you can’t offend something that, by definition, is perpetually offended, especially by Democrats’ very existence.)
There often is a mismatch between public perceptions of guilt and the government’s legal burden to prove it. What’s obvious to the common-sense understanding of the man in the street or even editorial board is less so in a courtroom where rules of evidence and the laws and defenses at issue provide plenty of opportunity for reasonable doubt. Allegations are easy; proof is not.
Facts are essential, of course. What often goes missing is an understanding of what, exactly, the law says, which a defendant is alleged to have violated. It’s worthwhile, therefore, to construct a catalog of statutes on which DOJ could build (and may well be building) an indictment of the former president.
There are two categories: (1) crimes related to government documents that Trump made off with when he left the White House and then refused to return when asked; and (2) crimes related to January 6. If it does indict, what are the charges, what will the government have to prove beyond reasonable doubt?
Part 1: The Government Documents Case
18 USC 793 — Gathering, transmitting or losing defense information
Commonly referred to as the Espionage Act, this statute governs “information respecting the national defense,” not classified information. To the extent that classification is relevant, courts use it as evidence that materials have been closely held and not disclosed to the public. See 18 USC 1924, below, for discussion of Trump’s declassification claim.
Sub-section (b) requires DOJ to prove that Trump took or obtained documents “connected with the national defense”. Given what we know the FBI removed from Trump’s place, that seems easy enough. He took national defense information and refused to give it back when asked.
But DOJ also must prove that Trump did this “for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation….” Sure, he took the stuff, but was it to injure the US? Suddenly not so easy.
Without evidence that Trump not only disclosed national defense information (e.g., to a foreign power) but did so with the intent to injure the US, it’s hard to see how the government meets its burden of proof. Would “I did it to preserve peace with North Korea” be seen as an intended harm to the US? Who knows what a jury would do.
Naturally, if the government’s ongoing investigation did turn up evidence that Trump communicated national defense information not to injure the US, but to give “advantage to any foreign nation” — for example, by disclosing the identities of human assets spying for the US — he’d be toast, provided that DOJ proved “advantage”.
Sub-section (d) is a smaller hill. DOJ must prove that Trump willfully retained national defense info and failed to give it back when asked. Trump will argue that he lawfully possessed it, which is true, but only until 12:00 on January 20, 2021. It’s hard to imagine a legitimate defense to his multiple refusals thereafter to return the national defense information in his possession.
Under sub-section (e), DOJ must prove that Trump’s possession — after leaving office — of national defense info was unauthorized, and that he willfully retained it and failed to give it back when asked. Biden’s decision in 2021 not to provide intelligence briefings to his predecessor strongly suggests Trump was no longer authorized to have that information.
(We don’t know whether Trump communicated national defense information “to any person not entitled to receive it” — information that Trump, himself, was no longer authorized to have — but if DOJ had evidence that he did, it would have to prove when, where, how, and to whom he communicated it.)
If Trump were, somehow, authorized to have national defense information even after Biden cut him off from intelligence briefings in February 2021, under sub-section (f) DOJ would have to prove that his gross negligence caused national defense info to go missing, or that he failed to report its illegal removal from its “proper place of custody”. Far as we know, however, the information isn’t missing. In addition, what was the “proper place of custody” and was the information removed from there “illegally”? Not a hill to die on.
DOJ must prove that Trump “knowingly” (inter alia) concealed or covered up “any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States….” (An investigation may eventually show that he also altered, destroyed, or mutilated documents, in which case DOJ has the same burden of proof: knowing and with the intent to obstruct.)
Trump knew DOJ was investigating the disappearance of government documents because (i) NARA told him, in the spring of 2022, that it was turning the matter over to DOJ; and (ii) in June 2022, a DOJ crew visited Trump’s place in Florida to discuss the matter. Trump’s correspondence and conduct — the refusal to return the documents, in particular — show that he intentionally impeded and obstructed DOJ’s investigation.
Trump also obstructed the administration of a matter within NARA’s remit — the collection of presidential papers for the National Archive. He promised, then reneged on a return of all the documents. This DOJ can easily prove using the correspondence between NARA and Trump.
Trump will argue that, even if he’s deemed to have obstructed, he never concealed. He simply chose to keep the documents even though, as NARA pointed out to him, he had no legal right to do so. The flaw in his argument is that, when he returned only 15 boxes of documents but falsely certified that they were the extent of what he had, he did knowingly conceal the rest, namely, the materials the FBI had to recover in August 2022.
Also likely is Trump’s contention that he couldn’t have knowingly concealed in order to obstruct in light of a good-faith belief in his possessory interest in the materials. DOJ can overcome this by pointing to his dishonest this-is-all-there-is certification related to the materials he did return, as well as the absence of his seeking relief in the form of a judicial determination that the materials were in fact his, not the government’s.
18 USC 1924 — Unauthorized removal and retention of classified documents or material
DOJ must prove that Trump (i) as president, was an “officer” or “employee” of the United States; (ii) as part of his job, came to have classified information; (iii) knowingly removed classified information without authority and with the intent to retain it at an unauthorized location.
As this statute has never been applied to a president (sitting or former), it’s not a given that Trump, as an elected office-holder, will be deemed an “officer” or “employee” of the government. No court has weighed in on the issue.
Nor is it clear that his removal of classified information from the White House to his Florida residence — during his presidency a second White House and, by inference, an “authorized location” — after the end of his term was “without authority”. Other than an end to intelligence briefings for Trump, there is no evidence of any other effort by his successor regarding classified information in Trump’s possession.
Trump defends on grounds that he declassified the materials. He may not have done it in accordance with the requirements of Executive Order 13526, but he did so pursuant to the magic-wand theory promoted by Kash Patel.*** Even if true, Trump’s version of declassification does not, by itself, mean that the materials — neither re-marked as declassified nor publicly disclosed — don’t qualify as national defense information.
*** August 12, 2022: “Statement from Trump Office: As we can all relate to, everyone ends up having to bring home their work from time to time… He had a standing order that documents removed from the Oval Office taken to the residence were deemed to be declassified.”
In light of the uncertainty regarding Trump’s legal status as “officer” or “employee” — an issue guaranteed to end up, at some distant future point, with the Supremes, for six of whom the “unitary executive” theory is holy writ — it’s curious that, instead, his public defenses have looked to the more implausible I-automatically-declassified-everything mantra.
18 USC 2071 — Concealment, removal, or mutilation generally
Sub-section (a) requires DOJ to prove that Trump willfully and unlawfully concealed or removed anything filed or deposited in “any public office, or with any … public officer of the United States”.
First, see discussion under 18 USC 1924, above, as to whether Trump qualifies as a “public officer of the United States”. Second, is the White House, where the materials had previously been “deposited,” a “public office”? Third, when he removed the materials (classified or not) from the White House to his Florida home, Trump certainly was acting willfully, but that’s not enough; DOJ also must prove that he acted unlawfully. Is DOJ prepared to litigate each of these issues ad infinitum with no guarantee of the outcome it wants?
Alternatively, under sub-section (b), DOJ must prove that Trump (i) had custody of materials; and (ii) willfully and unlawfully concealed or removed those materials from a public office. Is the White House a “public office”? What if Trump kept the materials only in the White House residence?
There is enough legal uncertainty under this statute to make DOJ think hard about how much powder to expend in charging Trump with it. While the facts are clear, the law is not. Litigating the matter would give the courts the chance to make mischief for the future. On the other hand, DOJ’s standard kitchen-sink approach might be useful in the context of a plea bargain: we can make this go away by eliminating some items, including this one, from the long list of offenses in exchange for your pleading guilty to a few.
Part 2: The January 6 Case
Unlike the Government Documents Case, the January 6 Case cannot avoid the political dimensions of what happened at the Capitol on January 6, 2021. That’s not to say that DOJ shouldn’t prosecute Trump. It does suggest, though, that DOJ’s decision-making on the matter — what charges under which statutes — must be convincing in the public’s mind as well as the jury’s.
More than 800 people are being prosecuted for a variety of offenses related to their presence at the Capitol that day. But Trump wasn’t there (even if he said he wanted to be). This lends an element of abstraction to possible charges that could be filed against him. Proof of battering a policeman is inherently easier than proof of incitement or conspiracy.
Inevitably, if indicted, Trump and his supporters will howl about a politically motivated prosecution. Equally inevitable is media’s amplification of those howls. But there is evidence — in no small part based on the public testimony of people who used to work for Trump — to support his prosecution under several federal statutes related to insurrection, sedition, and interference with an official proceeding.
18 USC 2383 — Rebellion or insurrection
DOJ must prove that Trump incited, set on foot, assisted, engaged in, or gave aid or comfort to, a rebellion or insurrection against the authority or laws of the United States.
Was what happened on January 6 really a “rebellion or insurrection,” or was it what Trump called it, a “protest”? Did Trump, with his speech at the Stop the Steal rally, “incite” the crowd not only to go to the Capitol but to breach police lines, enter the building, commit mayhem, threaten to execute Pence and Pelosi, and intimidate the rest of Congress — including Trump-supporting Republicans — to flee?
Outside of the Civil War context, judicial interpretations of “rebellion and insurrection” have been sparse. But we know that, on January 6, a mob of people assembled in order to prevent — through acts of violence and intimidation — the execution of the law that governs the certification by Congress of the 2020 election winner. A jury likely would have little trouble with DOJ’s evidence of rebellion and insurrection, just as New Mexico District Court Judge Mathew’s had no trouble.
“Incitement” is different. Can DOJ, per Brandenburg, prove that Trump intended his words “to incit[e] or produc[e] imminent lawless action and was likely to incite or produce such action”? Is the time between Trump’s 12:05pm “We will never give up;” “We will never concede;” and “We’re going to the Capitol”, and his supporters’ first breach of Capitol barriers at 1:08pm sufficient for “imminent” so as to overcome Trump’s free-speech defense, which will include the claim he never told them to be violent? What would a jury do?
DOJ more likely would succeed by charging Trump with giving aid and comfort to those who went to the Capitol. First, even if he didn’t incite them, he did encourage them to go there and “fight like hell,” effectively legitimizing whatever they did once there. Second, even if he didn’t intend them to engage in violence, he neither told them to stop once they did, nor directed the forces of order to stop them, inaction — despite pleas from family and associates — which aided and comforted them … while he was watching them on TV.
18 USC 2384 — Seditious conspiracy
Seditious conspiracy has been rarely used. Because of its breadth — in particular its prohibition on using “force to … hinder, or delay the execution of any law of the United States” — its application relies on the reasonableness of individual prosecutors to avoid its use in cases that involve conventional, non-political crimes.
DOJ must prove that Trump conspired (agreed) with at least one other person “to overthrow, put down, or to destroy by force the Government of the United States, … or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States….”
No doubt parts of the mob at the Capitol tried to “prevent, hinder, or delay” the certification of the election. And no doubt Trump wanted them to succeed. But, as of now, there is no evidence that Trump entered into an agreement with those people, let alone an agreement to use violence.
Without reliable evidence of such an agreement—Trump’s co-conspirator would have to flip,*** this is not the charge to bring against Trump. Further, because Section 2384 is by nature a political crime (a prosecution for which the outcome is 50/50 with the best evidence), its usefulness even in a plea bargain is questionable, regardless how attractive to prosecutors the prospect of a 20-year prison sentence might be.
*** Conceivably, Bannon is that guy. On 5 January 2021, after having spoken with Trump, Bannon announced on-air that “all hell is going to break loose tomorrow”. Circumstantial evidence of an agreement between the two, perhaps, but not enough to serve as proof of seditious conspiracy.
18 USC 371 — Conspiracy to commit offense or to defraud United States
Section 371 covers a non-political crime for which DOJ must prove that Trump (i) conspired (agreed) with at least one other person to commit “any offense against the United States, or to defraud the United States;” and (ii) he himself or his co-conspirator “[did] any act to effect the object of the conspiracy”.
John Eastman, self-described “activist law professor,” is the person with whom Trump conspired. We know this because of evidence developed in the course of Eastman’s (largely unsuccessful) effort in the courts to fight off a subpoena from the January 6 Committee for his records on assistance to Trump regarding the 2020 election.
That evidence consists of Eastman’s memo to Trump and the meticulous compilation of facts, which led Judge Carter to conclude that, more likely than not (i) Trump corruptly obstructed an official proceeding (see discussion of 18 USC 1512(c)(2), below); and (ii) Trump and Eastman had an agreement pursuant to which they “conspired to obstruct [by deceit] the Joint Session of Congress on January 6, 2021” and acted to put their agreement in effect, thereby violating Section 371.
The issue in the civil case before Judge Carter has been whether Eastman’s communications with Trump are exempt from disclosure on grounds of the attorney-client privilege, or must be disclosed because of the crime-fraud exception to that privilege. Nonetheless, the evidentiary record there serves as an invaluable foundation of undisputed facts on which DOJ can bring a Section 371 criminal case against Trump (and Eastman).
18 U.S. Code § 1512(c)(2) — Tampering with a witness, victim, or an informant
DOJ must prove that Trump “corruptly … obstruct[ed], influence[d], or impede[d] any official proceeding, or attempt[ed] to do so”. (The argument by some smart-ass January 6 defendants that the January 6 Joint Session of Congress was not an official proceeding has run head-first into Section 1515(a)(1)(B), which says that “the term ‘official proceeding’ means … a proceeding before the Congress”.)
As with Section 371, Judge Carter has already done the spadework in creating a trail of evidence for DOJ to follow. The extensive record of Trump’s public statements and (thanks to the crime-fraud exception Judge Carter applied to Eastman’s communications with Trump) behind-the-scenes machinations would make a DOJ decision not to prosecute border on a dereliction of its duty to uphold the laws.
In sum: From information available to date — the great unknown remains the nature and scope of investigations that may be happening behind the scenes — DOJ has a convincing case to prosecute Trump for his violation of four criminal statutes in the Government Documents Case, and three in the January 6 Case. Trump’s maximum potential legal exposure (fines aside), if convicted on all counts, is 73 years.
Government Documents Case
18 USC 793 (Gathering, transmitting, losing defense information); 10 years.
18 USC 1519 (Destruction, alteration, or falsification of records in Federal investigations and bankruptcy); 20 years.
18 USC 1924 (Unauthorized removal and retention of classified documents or material); 5 years.
18 USC 2071 (Concealment, removal, or mutilation generally); 3 years.
January 6 Case
18 USC 2383 (Rebellion or insurrection); 10 years.
18 USC 371 (Conspiracy to commit offense or to defraud United States); 5 years.
18 USC 1512(c)(2) (Interference with/obstruction of an official proceeding); 20 years.
