Eric Levitz makes an interesting point today about Donald Trump and his obsession with holding onto classified documents. The Department of Justice, far from indicting him for political reasons, actually went easy on him:
In January of last year, in response to a subpoena, Trump returned 197 classified documents to the federal government. Despite his willfully retaining those documents for months, the federal indictment released last week does not charge Trump in connection with any of them — which is to say, the DOJ gave Trump a pass on 197 potential counts of willful retention of national defense information. Instead, it charged him with only 31 counts corresponding with the number of highly classified documents Trump knowingly withheld from the government in January 2022 and the FBI later obtained.
Trump held onto hundred of classified documents for a year after leaving office, even after repeated requests for their return from the National Archives. He gave them back only after a subpoena. Even so, he did give them back, so DOJ let the whole thing slide.
But then Trump practically forced their hand. Even after NARA requests, even after a subpoena, he held on to dozens more classified documents and did everything he possibly could to hide them. The government got them back only after the FBI seized them in a search of Mar-a-Lago months later.
This is the key difference between Trump, Biden, Pence, and Hillary Clinton. Biden had a few classified documents in his possession after his vice presidency, but he promptly and voluntarily returned them when they turned up in a search. Ditto for Pence. Hillary never had any classified documents at all, merely some private email conversations that were mostly about things that were unclassified at the time but were later retroactively classified by the CIA in a routine feud with the State Department over classification standards. (The items that were classified at the time they were sent referred mostly to things that had been reported in the news.)
It's all simple, and even Republicans know it. Unlike anyone else, Trump actively and persistently held onto classified documents and conspired with others to keep them hidden. That's the difference. If he had returned them when the subpoena was issued, grudgingly or not, DOJ never would have done anything. But Trump refused, and at that point DOJ hardly had a choice. It was all but impossible not to indict him.
"...Hillary never had any classified documents at all, merely some private email conversations about things that were unclassified at the time but were later retroactively classified by the CIA in a routine feud with the State Department over classification standards."
I believe this is incorrect. If the CIA sends someone in the State Department a document containing classified information and that person incorporates the classified information into a State Department document which isn't marked classified that doesn't make the information unclassified it just means the document isn't marked properly. If the CIA later becomes aware of this and forces the State Department to mark their document properly this isn't retroactive classification, the information was always classified, it is just correcting a marking error. And if this is routine it is because the State Department is notoriously sloppy about obeying the rules.
Details various can be found in: https://www.fbi.gov/news/press-releases/statement-by-fbi-director-james-b-comey-on-the-investigation-of-secretary-hillary-clinton2019s-use-of-a-personal-e-mail-system
That's not actually what happened. Most of the "highly classified" references in the emails were to the CIA drone program, which is technically classified, regardless of how publicly its existence is known. Thus, if NYT or WaPo runs a story on a drone strike, or a website runs an ongoing tally of deaths from drone attacks, and Clinton reference that, she's referring to a top secret program.
That, and the birthday wishes to the President of Malawi.
It's even worse than this.
Saying Trump "held on to the documents" does not do justice to what was done with those documents. If classified documents were in the private homes of Pence, Biden, Clinton, etc., what are the chances that someone would be able to locate and copy or steal those documents? It's near zero because the homes of such people are secure places.
But Trump left boxes of these documents here and there in random storage areas and bathrooms in a public place, where all kinds of people could wander in and dig through them. Many people who had no security clearance whatever had access while Trump was treating them in this way. And he regularly pulled up documents he wanted so he could show them to people (again people lacking any security clearance or need to know) and brag about them.
Maybe.
Or maybe they didn't want to go down their case with less solid counts that might undermine all of them. This is a thing. Ask your prosecutor friends. He's already eligible for jail for the rest of his life. Let the prosecutors do their job. They are owed a lot of apologies after progressives have been alleging for 2+ years the feds would never indict him.
Talk to me at sentencing. There, I suspect, will be the rub. I am willing to bet it will be house arrest with all kinds of loopholes. People will seethe, but really, as long as he's not re-elected and he is convicted I can live with it.
No matter. The fix is in. Trump’s judge will dismiss the charges.
If we can’t get him for 1/6 seditious conspiracy, then it really doesn’t matter. Of course he’s a creep and a jackass. No one cares. Least of all his supporters.
This is a LONG way from done. Trump, and others (unless they are immunized), will almost certainly face additional charges in D.C., and potentially N.J. for the Bedminster shenanigans.
https://www.lawfareblog.com/shoes-yet-drop-mar-lago-investigation
For no purpose besides a quixotic tilting against the Telephone Game:
https://www.fbi.gov/news/press-releases/statement-by-fbi-director-james-b-comey-on-the-investigation-of-secretary-hillary-clinton2019s-use-of-a-personal-e-mail-system
Deference is always paid to authority in .gov, always.
The thing is, if anything, it should be the other way around and they should be held to even higher standards. We throw the book at some people and then someone like Trump, who flagrantly disregards the rules, while he probably won't get off, I doubt he gets whatever Reality Winner got.
I also think this whole statute needs a revisit. R's aren't wrong that he didn't commit espionage, which he's not accused of, but maybe we need a new and better version of something to handle this, and maybe, a ton less classification too.
No mention of the 47 empty folders.
And, saw somewhere a reference to a number of other documents that were recovered so sensitive they couldn't even be described so they can't be mentioned in court so he can't be charged for stealing them.
Well, heaven knows what that could be.
note to self: if ever stealing classified documents be sure to get the good ones.
If upon subpoena a person is responsive, you couldn't make a case of obstruction against that person.
But, why not prosecute for "removal and retention of classified documents" for those documents?
You must prove intent, according to 18 USC § 1924. It's very easy to claim that it was an accident, pointing to the responsiveness to the subpoena as proof of state of mind.
When you read the indictment, they lay out the evidence identifying the elements required for a conviction for the charges they brought forth.
As noted by just about everyone, in that single recorded audio, Trump established every element of 18 USC § 798. He admitted the documents were still classified, he admitted that he could not reveal it to people, and he openly discussed them and showed them to the people in the room.
That ain't good enough for you, that Trump called attention to the smoking gun in his hand?
Given the apparently extensive correspondence from NARA and stonewalling from Trump before the subpoena issued, I think it would have been very difficult for Trump to convince a jury that his continued retention of the documents right up to the arrival of the subpoena was an accident. Remember that the subpoena was only issued because Trump was being totally uncooperative.
Oh, my review was wrong. He was charged under 793(e), not 798 and 1924. 798 implicates classified documents whereas 793 is generally defense information.
793: "Whoever having unauthorized possession of [national defense information] [...] willfully communicates [...] to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;"
The officer or employee who would be entitled would be the DoJ and/or the originating agency of the defense information, not NARA.
NARA statutes don't have criminal liability beyond seizure of property/proceeds. Just stonewalling NARA does relatively nothing.
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A: You can't do that! I tried sticking my dick in there and it was like the damn thing blew up or something! And when I tried going to the emergency room it was like they were all laughing at me! Laughing! Like they were all in on it! Fucking liberals.
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