Reporting from the Washington Post and New York Times indicates that former president Donald Trump has been indicted on seven felony counts. The indictment obtained by special counsel Jack Smith from a federal grand jury in Miami is still under seal, so the reports are based on leaks from people said to be knowledgeable.
The most notable thing I’ve seen is that, in charging Trump with an Espionage Act offense, prosecutors are relying on a provision that criminalizes willful violations of the rules that government officials are required to follow in handling national-defense intelligence. This seems like an obvious effort to distinguish Trump’s alleged crime from President Biden’s mishandling of classified documents, which the White House and the media-Democratic complex have described as inadvertent — the result mainly of sloppy staff work, not willfulness.
No one who has been following our analyses at NR will be surprised to hear that Trump is reportedly charged with a conspiracy to obstruct justice. What intrigues me about that allegation is that it takes two to tango — i.e., one can’t conspire alone. To have conspired to obstruct justice, prosecutors would have to prove that Trump had at least one co-conspirator who knowingly agreed to obstruct the government’s investigation. At this point, it is not clear with whom Smith alleges Trump conspired. When the indictment is made public, perhaps it will shed light on that question.
Trump is also said to be charged with making false statements. As I’ve previously related, one theory the special counsel appears to be pressing is that Trump is responsible for a false sworn statement his lawyers conveyed to the FBI — for transmission to the grand jury — on June 3, 2022.
At that time, the lawyers represented that a thorough search of Mar-a-Lago had been conducted and that the 38 documents bearing classification marking that they were surrendering that day were the only ones in Trump’s possession. After that point, the government continued to investigate and developed evidence that Trump was still hoarding documents marked classified. As a result, prosecutors sought and obtained a search warrant for Mar-a-Lago on August 5, 2022. Three days later, the FBI searched the premises and seized over a hundred documents with classification markings, many of them found in Trump’s private office.
Under the federal aiding-and-abetting statute, a principal is responsible for criminal acts of his agents, including false statements, if he has caused, counseled, or commanded their commission.
Most interesting, though, are reports that Trump is charged with willfully retaining national-defense information. We can’t be sure until we’ve seen the indictment, but this appears to refer to subsection (d) of the Espionage Act (Section 793 of the federal criminal code, Title 18). In pertinent part, that section states:
Whoever, lawfully having possession of, access to, control over, or being entrusted with any document … relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, … willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it [is guilty of a crime punishable by up to ten years’ imprisonment].
Subsection (d) sets forth a more serious offense than the provision that usually applies to government officials who mishandle classified information and other national-defense intelligence. That provision, subsection (f), makes it a crime for officials trusted with national-defense intelligence to exhibit gross negligence in mishandling it (e.g., by removing it from safekeeping, by retaining it in an unauthorized place, by exposing it to an unauthorized person, or by allowing it to be lost, stolen, or destroyed).
Subsection (f) would obviously be applicable to the misconduct of President Biden, who was entrusted with classified information and, at a minimum, caused it to be removed from safekeeping and stored it in unauthorized locations.
Obviously, if Trump were charged with a violation of subsection (f), it would raise the question of why Biden has not also been charged with that offense. The strategy of the Biden administration and its special counsel, then, seems to be (1) to allege that Trump committed a willful offense that puts him in a different, more egregious category from Biden’s conduct; and (2) to pretend in connection with Biden — as the Obama-Biden Justice Department pretended in connection with Hillary Clinton’s email scandal — that it is not a felony for government officials to be grossly negligent in mishandling classified information (i.e., to pretend that willfulness, or some intent to harm the United States, is an essential element of the offense).
