Just Security -- which bills itself as "an online forum for the rigorous analysis of security, democracy, foreign policy, and rights" -- has released what it's calling a "model prosecution memo" that details the case, so far, for prosecuting Donald Trump over his retention of classified documents.
Some quick facts, to remind you of how we got here:
The National Archives and Records Administration (NARA) tried for almost a year after Trump left the WH to get these docs back. At the time, during that year, it didn't know what kind of documents Trump had, only that they were government docs, which belong to the American people, not a former president. Only after the agency threatened to involve Congress in the matter did Trump and his lawyers relent, and allow NARA to collect SOME documents in early 2022.
After doing so, NARA noticed that some of the docs they got back had classified markings. They alerted the Department of Justice (DOJ), which later prompted the department to question Trump's lawyers further until it was determined they needed to issue a subpoena to get the remaining docs back. The subpoena was served in May of 2022, and served out in June of that year. Trump was purportedly cooperative during that subpoena, but as we find out later, he might have been trying to hide documents, too, which could render a charge of obstruction.
After the DOJ carried out its subpoena and retrieved what Trump and his lawyers said were all of the remaining classified documents from Mar-a-Lago, more evidence surfaced that Trump had lied to them. We know from reports, for example, that Trump had his workers move documents both prior to and after the DOJ subpoena was carried out (including on the day before officials came to Mar-a-Lago to get them). Trump was clearly not trustworthy in surrendering these documents willfully, so the FBI obtained a search warrant and retrieved them, without Trump's consent or knowledge ahead of time, in August.
In total, more than 300 classified documents were retrieved from Mar-a-Lago from the first retrieval in January 2022 to August 2022. A few more documents were also retrieved from a storage locker not at Mar-a-Lago later that year.
Trump has not tried to hide the fact that he had these docs in his possession. In fact, he has said that what he did was perfectly legal, suggesting that he declassified the documents automatically just by thinking about doing it on his last day as president when he removed them from the White House.
That's...not how things work, at all. There's a process for declassifying documents. And even if that IS how things COULD happen, the declassified docs would still belong to the government, not to Trump.
Anyway, back to the memo...
Just Security, in publishing its memo detailing how the DOJ could prosecute Trump, TODAY, is basing its opinion on just what's been made public knowledge, through court filings and media reports about the matter. In other words, this memo says Trump can and should be prosecuted without even knowing the things the DOJ knows that hasn't been made public yet.
No doubt, there is more information that DOJ has paints Trump in an even darker light.
From Just Security:
There is sufficient evidence to obtain and sustain a conviction here, if the information gleaned from government filings and statements and voluminous public reporting is accurate. Indeed, the DOJ is likely now, or shortly will be, internally circulating a pros memo of its own saying so.
But since the DOJ memo will likely be "highly confidential," it will probably not be made public, Just Security noted. So, the site produced their own memo, to give the public some insight into what the DOJ might be saying in their prosecutorial documents, if they're drafting them.
"Given the gravity of the issues here, our memo provides a sense of how prosecutors will assemble and evaluate the considerations that they must assess before making a prosecution decision," the website says.
The memo is extensive: if you make the time to read it, buckle in, because it's 180 pages long. The authors of the report include a number of university law professors and former federal prosecutors (some of them are both!), as well as other legal minds.
But to put it short, Just Security makes the case for prosecuting Trump based on six criteria, separated into two sections, which read:
Mishandling of Government Documents
1. Retention of National Defense Information (18 U.S.C. § 793(e))
2. Concealing Government Records (18 U.S.C. § 2071)
3. Conversion of Government Property (18 U.S.C. § 641)
Obstruction, Contempt, False Information
1. Obstruction of Justice (18 U.S.C. § 1519)
2. Criminal Contempt (18 U.S.C. § 402)
3. False Statements to Federal Investigators (18 U.S.C. § 1001)
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