Like a Drug Prosecution.....

Why Trump’s Documents Case Is Really Just Like a Drug Prosecution

He had possession of something he shouldn’t have. It’s that simple.

Opinion by RENATO MARIOTTI

Former president Donald Trump has evaded criminal prosecution for years, in large part because white-collar crimes like fraud and obstruction of justice require prosecutors to prove that the defendant had a particular state of mind. But the Justice Department now has Trump in its crosshairs for straightforward crimes that are easier to prove, and it looks like the first federal criminal charges against a former president are at least plausible, if not probable.

For years, I have explained why Trump’s outrageous actions did not fit neatly within existing criminal statutes or would be otherwise difficult to prosecute. But his determination to keep highly classified documents at his residence in South Florida even after the federal government told him they were classified and demanded their return is much more like the straightforward crimes I prosecuted as a junior federal prosecutor — bank robbery and narcotics trafficking — than the complex white-collar crimes I later spent years investigating and prosecuting.

White-collar crimes like fraud or obstruction usually turn on the defendant’s intent. There is usually no question that the defendant filed his tax returns. But did he do so with the intent to defraud the IRS? It can be easy to prove that a defendant destroyed documents or spoke with a witness. But did she do so with the intent to obstruct or impede a federal investigation? We don’t have a magic device that can read a defendant’s mind, so prosecutors typically ask jurors to infer a defendant’s intent from their communications or their actions. It isn’t always easy to do.

Not all crimes are that complicated. As a junior prosecutor, I spent years investigating large-scale narcotics trafficking. In a narcotics case, if you possess heroin or cocaine, you’re guilty. You can argue that you didn’t really know it was narcotics — maybe you thought it was powdered sugar — but that is rarely a viable defense. If the government can prove you were the guy at the drug deal, it’s over.

Most of the statutes at issue in the Mar-a-Lago documents case are more similar to a narcotics case than a complicated bank fraud or obstruction of justice case. Top Secret classified documents are a lot like narcotics from a criminal law perspective. You really don’t want to possess them if you are not authorized to do so. If you take Top Secret classified documents from a government facility and store them at your home, you’re guilty.

According to the just-released redacted affidavit for the search warrant conducted by the FBI on Aug. 8, in the 15 boxes removed from Mar-a-Lago in February, 184 documents had markings that indicated various levels of classification, 25 of them marked Top Secret. Some of these documents, according to the affidavit, concerned human intelligence sources. The presence of so many sensitive documents in the first batch of boxes suggests strongly that the numerous boxes of documents FBI agents subsequently seized also include highly sensitive documents.

I’m convinced that if the defendant’s name was John Doe and not Donald John Trump, he would be charged in this case. Trump is obviously not a typical defendant. But his potential defenses are limited. He can argue, as he has done, that the FBI planted the documents. That will work about as well as it works when defendants claim that the DEA planted drugs at their home. (It usually doesn’t.) He can also argue that he declassified the documents via an unwritten “standing order” when president, but as DOJ recently pointed out, the statutes at issue don’t require the documents to be classified if they are closely held national defense material.

The only viable defense Trump has is to point the finger at someone else — to claim that he is a hands-off administrator who took the word of his aides that none of the documents at Mar-a-Lago belonged in the government’s hands. But while two of the statutes at issue require the government to prove that the defendant intended to break the law, the DOJ’s repeated requests and demands to Trump — including a grand jury subpoena — will make it hard for him to argue that he did not realize that the records contained national security secrets that belonged to the federal government.

Trump’s defense would have to be that he did not read any of the communications from the government and was told by his attorneys that their meeting and communications with the DOJ indicated that he was in the clear. He would have to claim that the attorneys lied to him and that he never directed one of the attorneys, Christina Bobb, to sign an apparently false statement to DOJ that all of the materials “marked classified” had been returned to the government.

It’s not uncommon for criminal defendants to point the finger at professionals like attorneys and accountants. In my experience, lawyers distance themselves from the defendant and protect themselves whenever a defendant points the finger at them. I personally interviewed lawyers, along with a FBI agent, and they dropped the defendant like a hot potato. That has been my experience in private practice as well. I typically advise clients that their lawyers and accountants will throw them under the bus.

Trump has inspired loyalty from millions of Americans. But it remains to be seen whether lawyers are willing to sacrifice their career — and their freedom — to take the fall for him. If they don’t, Trump must hope that Attorney General Merrick Garland exercises restraint. For instance, when General David Petraeus removed classified information and lied to the FBI about it, he was offered the opportunity to plead guilty to a misdemeanor. (Ironically, Trump signed into law a bill that made that same statute a felony, and it’s not clear if there is a misdemeanor that applies to his conduct.)

Many of Trump’s defenders, such as former White House Chief of Staff Mick Mulvaney, have taken to minimizing the severity of the case by alleging that “if it’s just about documents, that’s almost absurd.” If there is no other alleged criminal activity, the supporters argue, then the FBI’s search was an unjustifiable “overreach.” That’s like arguing a narcotics case is just about the drugs. In this case it really is just about the documents. Trump had something he shouldn’t have. And that’s a potential crime.

It looks like the Justice Department has the goods on Trump. Typically, a criminal defense attorney would be trying to work out a deal in this situation. That may be the best move Trump has left, even if he isn’t inclined to go that route.