The Search at Mar-a-Lago

On August 8, the FBI executed a search warrant at Donald Trump’s residence at his Mar-a-Lago resort in Florida. The search followed more than a year of efforts to get Trump to return government documents he had taken with him when he left the White House in January 2021. In the search, agents recovered a large number of classified materials that had been improperly kept at Trump’s residence.

The government’s evaluation of any potential damage to national security resulting from Trump’s retention of these documents is ongoing, as is the criminal investigation into the handling of the documents. But the implications of the search are clear: of all the investigations swirling around the former president, this may be the one that most squarely places him in legal jeopardy.

Documents seized at Mar-a-Lago – FBI Photo

Events Leading Up to the Search at Mar-a-Lago

The National Archives and Records Administration (NARA) has been trying to recover official government records from Trump ever since he left office in January of 2021, amid news reports of moving vans taking documents to Mar-a-Lago.

After a year of negotiations, Trump turned over 15 boxes of documents to NARA in January of 2022. At the time, he and his representatives did not claim any executive privilege related to the documents. Nor did they claim that Trump had declassified any documents.

When NARA reviewed the so-called “fifteen boxes,” they found a lot of classified material mixed in with other papers and personal items. As a result, in May they referred the matter to the Department of Justice for an investigation into the mishandling of classified information. When DOJ reviewed the boxes, it found 184 classified documents, including 25 that were marked Top Secret.

On May 11, believing Trump still had additional documents, DOJ issued a grand jury subpoena for any classified materials at Mar-a-Lago. On June 3, the president’s representatives met with investigators and turned over a single Redweld folder of documents in response to the subpoena. Once again, they did not claim that the documents had been declassified; in fact, they treated them as sensitive materials by wrapping the folder in tape and sealing it.

Trump’s representatives gave the agents a certification, signed by one of Trump’s attorneys, that they had made a “diligent search” and that this was all the classified material that remained. They also showed the agents a storage room where there were additional boxes of documents, but refused to allow the agents to open the boxes to verify that they did not contain any classified materials. The folder they turned over contained 38 more classified documents, including 17 marked Top Secret.

Following the June 3 meeting, the FBI reportedly developed “multiple sources of information” that there were still more documents that had not been turned over. They also developed evidence that “government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.”

On August 5, DOJ applied for the search warrant, and it executed the warrant on August 8. They recovered 38 boxes, containers, or other items of evidence. Thirteen of them contained classified material. Some of them were extremely sensitive and classified at high levels such as SCI (Sensitive Compartmented Information).

As the government noted in an August 30 pleading, “That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the ‘diligent search’ that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter.”

The Criminal Statutes at Issue

The government cited three different criminal statutes in the search warrant, alleging there was probable cause to believe that evidence of those crimes would be found at Mar-a-Lago. These crimes potentially were committed not only by Trump himself, but also by some of his staff or attorneys who were involved with the documents.

18 U.S.C. § 793

The first statute referenced, Title 18 U.S.C. § 793, is part of the Espionage Act of 1917. It has a few different subsections, and the search warrant doesn’t specify which ones the government is focused on. Subsection (e) makes it a crime to be in unauthorized possession of documents or other information “relating to the national defense” with reason to believe that the information could be used to injure the United States or help a foreign nation, and to willfully retain that information and fail to deliver it to the government official entitled to receive it.

Subsection (f) makes it a crime for someone who is otherwise authorized to have national defense information to allow it to be removed from its proper place of custody through gross negligence, or after learning that it has been so removed, to fail to report it.

Both subsections (e) and (f) are ten-year felonies.

Information related to the national defense is broadly construed under this statute. Material that was important enough to be classified, particularly at the higher levels of some of the materials seized at Mar-a-Lago, would likely be considered national defense information.

Under this section the alleged crime is straightforward: Trump and his associates removed national defense information from its proper location, retained it, and failed to turn it over when it was requested by the proper government officials.

18 U.S.C. § 2071

This statute applies to anyone who “willfully and unlawfully” conceals, removes, or carries away any record or document, or other thing, “filed or deposited with any clerk or officer of any court of the United States, or in any public office.”  It’s a three-year felony.

The “filed or deposited with” language has been interpreted broadly. The statute basically applies to any government documents that are supposed to be maintained by some public office, even if they haven’t been formally “filed.” Presidential records that are supposed to be maintained by the National Archives would fall into that category, and classified information certainly would as well.

Once again, the nature of the allegation here would be straightforward: Trump removed documents meant to be maintained at NARA or in other government offices and then concealed them when the government tried to get them back.

18 U.S.C. § 1519

This is an obstruction of justice statute. It applies to anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede a federal investigation or the proper administration of any matter within the federal government’s jurisdiction. The maximum penalty is twenty years in prison.

The allegation here would be that Trump or those working for him concealed the records with the intent to impede either the FBI investigation or the NARA efforts to recover and maintain the documents. Unlike other obstruction of justice statutes, this section applies to investigations and does not require a more formal proceeding such as a trial, grand jury, or Congressional proceeding.

This statute was the subject of one of the more bizarre Supreme Court decisions in recent years, Yates v. United States. In Yates a fishing captain was charged under § 1519 for throwing overboard undersized grouper that were evidence of a violation of fishing regulations. The Court ruled that a fish was not a “tangible object” within the meaning of this statute and that 1519 applies only to objects that contain information, such as computer drives. But that would not be an issues in this case, which clearly involves records and documents within the meaning of the statute.

18 U.S.C. § 1001

This statute, false statements, is not mentioned in the warrant paperwork, but it is suggested by the recitation of facts in the government papers. The statute prohibits knowingly making any materially false statement in any matter within the jurisdiction of the federal government. It’s punishable by up to five years.

Recall that in June, Trump’s attorney represented in writing that all of the requested documents had been turned over and that a “diligent search” had been conducted for any additional classified documents. As the government noted in its August 30 filing, the fact that the FBI quickly found so many additional classified documents calls into question the veracity of this certification.  

If the government develops evidence that the attorney, Trump himself, or others working for Trump knowingly made a false certification that all documents were turned over, that could implicate not only obstruction of justice but also the false statements statute.

Evidence of Trump’s Knowledge

In a criminal case, a potential defense for Trump presumably would have been a lack of knowledge about the documents. He might have tried to blame it all on his advisors, saying they must have mishandled his presidential records without his knowledge. But the evidence that has emerged so far has made such a defense basically impossible.

First is just the sheer volume of materials recovered. One might plausibly deny knowing about a stray document or two. But when we are talking about several dozen boxes of documents — more than a dozen containing classified materials — being kept in your home, it becomes much more difficult to claim you didn’t know they were there.

Another factor is where some of the documents were located. The government’s August 30 filing notes that some of the classified documents were found in Trump’s personal office, including in his desk drawer. A few were in a drawer that also contained Trump’s passports. If the classified materials are in your own desk and intermingled with your personal documents, it becomes much harder to deny that you knew about them.

The search warrant affidavit also noted that some of the classified materials turned over in January appeared to have Trump’s handwritten notes on them. This too would be evidence of Trump’s knowledge that he had the documents – although one issue might be proving when such notes were made. Trump could claim they were written while he was still in the White House.

Witnesses will also be important. The government may have developed witnesses who can testify about conversations with Trump concerning the presence of the documents and that he did not have a right to keep them at his home.

But the most damning evidence of Trump’s knowledge is his own words since the search took place. For example, after the search he said this on his platform Truth Social:

This statement admits he knew the documents were there, and that they were in “cartons.” Some of his allies on Fox News have tried to suggest that the FBI may have planted the documents, but this statement undermines any such claim.

Then there’s this one:

The statement, “Lucky I declassified” is an admission not only that he knew he had the documents but that he knew they were classified, and implying that he knew it would be improper for him to have them if they were not declassified.

Trump’s inability to stay quiet must be maddening for his attorneys. He is undermining his own potential defenses.

The Declassification Argument

Trump and some of his allies have claimed there was no problem with him keeping the documents because Trump issued some kind of blanket declassification of all the documents before taking them. Presidents (although not former presidents) do have broad power to declassify information, but in this case that will not help Trump.

Legally, the declassification claim is irrelevant. If you review the criminal statutes discussed above, you will see that none of them require that the documents removed or concealed were classified. Trump, while still president, could have formally and officially declassified even the most sensitive information (although that would have been a gross dereliction of duty) and it would make no difference for purposes of the crimes being investigated.

Factually, there is no evidence of this purported declassification. The president can’t just wave a magic wand and declare something declassified; there would be paperwork and notations on the documents themselves. As far as we know, none of that exists. As the government has pointed out in its papers, at no time during the negotiations with NARA and in none of their court pleadings have Trump’s attorneys ever actually claimed that the documents were declassified.

The declassification argument is just a smokescreen. It didn’t happen, and even if it did, it wouldn’t matter. To be sure, the fact that the documents were classified is important in terms of the seriousness of the case. If the documents had consisted only of the guest lists for White House state dinners, there’s no way the government would have taken the dramatic step of executing a search warrant at a former president’s home. That the documents contained some of the country’s most sensitive information is an argument in favor of pursuing a criminal case – but it’s not a legal requirement for these potential crimes.

What Happens Next

It’s going to be very interesting to watch the developments in this case. There is some legal wrangling going on now over whether a court should appoint a Special Master to review the documents for any claims of executive privilege or attorney-client privilege, but that’s not going to make a big difference in the criminal case. Thanks to the president’s lawyers waiting two weeks to act, the government has already finished reviewing the documents and already knows what it has.

It will take some time for prosecutors and agents to analyze the recovered materials, complete the investigation, and evaluate any potential criminal charges. But it’s clear that this is an active, serious investigation that poses a real threat to the former president. And based on the government’s reference to witnesses and sources of information, someone inside the former president’s circle is talking – maybe multiple someones.

Trump’s attorneys are in a bit of a bind. Those who were involved in the negotiations with NARA and DOJ are likely going to have to withdraw from their representation of Trump. At a minimum, they are witnesses concerning the critical events in question. Depending on how the evidence develops, some of them could face legal jeopardy themselves. As someone joked on social media, maybe MAGA should stand for, “Make Attorneys Get Attorneys.”

There are almost certainly others, in addition to Trump himself, with criminal exposure here. It would not be surprising to see prosecutors build a case by persuading some of the lower-level people involved to plead guilty and cooperate against those higher up the ladder.

Even if prosecutors develop a compelling case, they might hesitate to proceed if prosecution would require revealing the secrets contained in some of the documents that Trump retained. This is sometimes referred to as “graymail” – the idea that a defendant can force prosecutors to drop a case involving classified information because putting the defendant on trial would require disclosing that information to the defense and the public. Depending on the nature of the classified information and the structure of any charges, the government may decide that a criminal prosecution should be declined in order to preserve the confidentiality of that information.

Al Capone

After the Mueller report, the attempted coup on January 6, 2021 and all of the other investigations surrounding Trump, indicting him for mishandling of classified information would feel a bit like prosecuting Al Capone for tax evasion. Even if prosecutors can develop a compelling case, deciding to indict a former president for the first time in our history would be a monumental step. In this and other investigations involving Trump, attorney general Merrick Garland will have to wrestle with all of the legal, social, and policy implications of bringing — or not bringing — such a case. I’m glad I don’t have to make that call.

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Thoughts on Durham and the Sussmann Prosecution

After deliberating for only a few hours following a two-week trial, a federal jury this week acquitted D.C. attorney Michael Sussmann on a single charge of lying to the FBI. The quick not-guilty verdict was no surprise; the flimsiness of the government’s case was apparent from the start. This was a case that never should have been charged. The Sussmann prosecution is a cautionary tale of the damage a prosecutor can do when he loses sight of the line between criminal justice and politics.

Michael Sussman speaking after the verdict
Sussmann speaking after the verdict

The Sussmann Indictment

Sussmann is a prominent D.C. attorney who represented the Hillary Clinton campaign and the Democratic National Committee during the months leading up to the 2016 presidential election. In September 2016 he brought computer data to the FBI that suggested possible links between Donald Trump’s presidential campaign and Alfa Bank, a Russian bank with ties to the Kremlin.

The Alfa Bank allegations became a minor part of Crossfire Hurricane, the FBI’s broader investigation into potential ties between the Trump campaign and Russia. That investigation ultimately concluded that the data provided by Sussmann did not establish the suspected connection between the bank and the Trump campaign.

Former president Trump, of course, complained repeatedly (and still complains) that the FBI’s Russia investigation was a hoax, that the FBI and Clinton campaign conspired against him, and that the Obama administration “spied” on Trump and his campaign. Trump’s attorney general William Barr was also critical of the FBI’s Russia probe. In May of 2019, he assigned John Durham, the U.S. Attorney for Connecticut, to lead an investigation into any potential criminal wrongdoing in the Crossfire Hurricane investigation. In October 2020, Barr appointed Durham as a special counsel to continue that same investigation, thus granting Durham more independence and ensuring that his work could continue even after the Trump administration left office.

Last fall, just before the five-year statute of limitations expired, Durham charged Sussmann with making a single false statement during his meeting with the FBI in 2016 about the Alfa Bank data. The indictment alleged that during the meeting Sussmann said he was not acting on behalf of any client in bringing the data to the FBI. In fact, according to the indictment, he was acting on behalf of the Clinton campaign and a tech executive who collected the data.

The False Statements Charge

Sussmann was charged with one count of False Statements, 18 U.S.C. § 1001, a very common white-collar charge that broadly prohibits lying to the federal government. Unlike the related crime of perjury, it does not require that the statement was under oath. The statute is commonly used to charge lies on various government forms or applications. If you’ve filled out any kind of federal government paperwork, you’ve probably seen a notation at the bottom about how providing false information may be a criminal offense chargeable under 18 U.S.C. § 1001.

False statements is also frequently used to charge witnesses with lying to the FBI. A recent high-profile example was the prosecution of president Trump’s former national security advisor Michael Flynn, who was prosecuted for lying to the FBI about his contacts with the Russian ambassador in the weeks leading up to Trump’s inauguration. Trump confidant Roger Stone was also convicted of 1001 for lying to Congress about his work for the Trump campaign related to Wikileaks and the release of Democratic emails stolen by Russian hackers.

In any false statements prosecution the government must prove that the statement was actually false, that the defendant acted knowingly and willfully, and that the statement was material. Durham’s prosecution of Sussman stumbled over each of these requirements.

Special Counsel John Durham
Special Counsel John Durham

The Challenge of Proving Actual Falsity

The government’s star witness at trial was James Baker, the former FBI general counsel who met with Sussmann about the Alfa Bank data. The prosecution’s entire case hinged on Baker’s memory of a single alleged statement from their 30-minute conversation nearly six years ago. The meeting was not recorded, Baker took no notes, and there were no other witnesses.

Baker claimed on the stand that he was “100% confident” Sussmann told him during the meeting that he was not there on behalf of a client. But Baker had given conflicting accounts in the past about what exactly Sussmann said during their meeting, and the defense was able to hammer away at those inconsistencies. Sussmann’s defense also pointed out that Baker said he could “not recall” more than 100 times while on the witness stand. Yet when it came to this one particular detail of their conversation, his memory was supposedly rock-solid.

Recalling from memory precisely what was said in a brief conversation six years ago is virtually impossible. Given the nature of memory and human language, differences in recollection about precise wording and details are inevitable. And when a criminal charge is based on deliberate lying, minor variations in exactly what was said can make all the difference.

For example, one issue that arose during the trial was the distinction between representing a client and doing a particular act on behalf of that client. There was no doubt that Sussmann represented the Clinton campaign, and there was no doubt that Baker and the FBI knew that. But, as the defense pointed out at trial, just because you represent a client doesn’t mean that every action you take is on that client’s behalf.

There was evidence at the trial that the Clinton campaign did not ask Sussmann to bring the Alfa Bank information to the FBI. The campaign would have preferred that the data simply be given to the media, because it did not trust the FBI and thought the existence of an active investigation might actually make it more difficult to get the story out. So it could easily be true both that Sussmann represented the Clinton campaign and that he was not acting on the campaign’s behalf during this particular meeting. At the very least, those kinds of subtle distinctions almost inevitably raise a reasonable doubt about what precisely happened during a brief meeting six years ago.

It’s interesting to note that if the crime were common-law perjury (which requires testimony under oath) rather than false statements, an ancient doctrine called the “two witness rule” would bar such a prosecution. The two witness rule holds that a perjury prosecution cannot be based simply on a swearing contest, one person’s word against another’s. Prosecutors must have at least two witnesses to prove an alleged perjurious statement, or one witness plus some other independent evidence that supports the allegation of perjury. More modern perjury statutes have done away with the two-witness rule, and there is no such rule when it comes to 18 U.S.C. § 1001. But the wisdom of that rule still applies: resting a criminal prosecution on such “he said – he said” evidence is necessarily shaky, and only gets shakier with the passage of time.

These inherent uncertainties based on the nature of language and memory are why bringing a stand-alone prosecution based on a single unrecorded false statement witnessed by only one person is almost unheard of. It’s almost the definition of a reasonable doubt. That would be enough to stop most prosecutors — but it didn’t stop Durham.

The Requirement of Materiality

In addition to proving what Sussmann actually said (which, as we’ve seen, was difficult enough), the government had to prove any lie was material — that it potentially mattered to the FBI. Here, too, the evidence in Sussman’s case fell far short.

The materiality requirement is usually not a significant hurdle for prosecutors. It means only that the statement had the potential to affect the actions of the government body to which the statement was directed. There’s no requirement that the government was actually influenced; in fact, a false statement can be material even if the government knows you are lying the instant that you utter it and never acts on it at all. All that matters is that the statement, by its nature, was the type that potentially could have made a difference.

Baker testified that if Sussmann had not allegedly made his false statement about not coming on behalf of any client, he would have treated the information with more suspicion or perhaps would not have agreed to meet at all. If believed, that testimony would be enough to establish materiality as a matter of law. But there were many reasons for the jury to doubt this evidence as well.

There was ample evidence – some of it contained in the indictment itself — that the FBI knew full well who Sussmann was and what clients he represented. Given what Baker knew about Sussmann’s clients and connections, there was little reason to believe he would have acted any differently even if Sussmann did claim to be providing the computer data solely as a good citizen. After all, this meeting was taking place less than two months before a hotly-contested presidential election. The FBI wasn’t receiving the information in a vacuum and could not divorce the information from what it knew about its source. And the evidence at trial established that the Bureau would have investigated the allegations regardless of their origins. That at the very least raised a reasonable doubt about the alleged statement’s materiality.

The jury’s quick verdict suggests that it saw the allegations against Sussmann for what they were: a big “so what.” Jurors interviewed after the verdict said the case should not have been prosecuted and that they thought the government has better things to do. In class I sometimes refer to this as the, “no harm, no foul” rule – it’s not really a legal doctrine, but it does get the idea across. As a prosecutor, if at the end of your trial the jury is looking at you and thinking, “Why did you waste our time with this?” — it doesn’t bode well for your case.

Donald Trump

A Political Prosecution

From the start, the Sussmann prosecution felt more political than criminal. The lengthy indictment sought to paint a broad picture of a supposed conspiracy involving Clinton campaign operatives and the FBI. But most of the alleged activities involved legal opposition research and had nothing to do with the actual charge against Sussmann. Trying to dig up dirt on an opposing campaign and get the media to run with it may be unsavory. But it’s not illegal, and is a standard practice — as the old saying goes, politics ain’t beanbag. Sussmann’s indictment seemed more designed to feed Trump’s fevered conspiracy theories than to lay out an actual criminal case.

Prosecutors at trial also sought to portray Sussmann’s supposed deception as part of a broader plot by the Clinton campaign to enlist the FBI in bringing down Trump. Prosecutors referred to Sussmann as a “privileged attorney” who tried to use his access to further his own political goals. In closing arguments, prosecutors argued that Sussmann and the Clinton campaign tried to engineer an “October surprise” involving the media and the FBI in order to damage Trump. To put it mildly, the jury didn’t buy it.

Some on the right will argue that, regardless of the outcome, Durham did a great service by bringing the case and “exposing” supposedly unsavory conduct by the FBI and the Clinton campaign. But criminal prosecution is about bringing specific, provable charges, not providing public reports on noncriminal conduct. The Department of Justice Inspector General already produced a lengthy report about the FBI’s handling of the allegations concerning the Trump campaign and Russia. That report concluded there were some legitimate problems with how certain aspects of the investigation were handled, but that the overall investigation was properly predicated and not politically motivated. It was not Durham’s job to create an alternate-universe version of those facts through the vehicle of a trumped-up criminal prosecution.

Of course, an acquittal does not necessarily mean that a prosecution was not righteous. But in this case, that’s exactly what it means. A federal prosecutor is not supposed to indict unless he or she believes there is likely sufficient evidence to convince a jury of guilt beyond a reasonable doubt. It’s hard to see how any prosecutor could have looked at the facts of the Sussmann case and reached that conclusion in good faith.

Sussmann’s acquittal means the system ultimately worked, but that is cold comfort. Merely being indicted and put on trial is a tremendous ordeal – one that Sussmann never should have had to endure. Good prosecutors never forget the tremendous responsibility that comes with the powers they wield. In Durham’s zeal to provide fodder for Trump’s “deep state” conspiracy theories, he appears to have lost sight of this fundamental principle.

Durham’s probe has now lasted more than three years, and he has remarkably little to show for it. He obtained one guilty plea to a minor charge involving a former FBI attorney who admitted altering an email. He has another pending case against a Russian national, Igor Danchenko, for allegedly making false statements to the FBI about his involvement in the controversial Steele dossier. It’s unclear whether Durham’s investigation will lead to any more prosecutions. The Sussmann verdict will surely increase the pressure on the Justice Department to bring it all to a close.

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