Attorney General Merrick Garland has a mantra when it comes to politically charged investigations: “We will follow the facts and the law, wherever they lead.”
But Garland’s mantra won’t get him the answers he wants in the gargantuan decision of whether to prosecute former President Donald Trump over the trove of government documents — many of them marked as highly classified — that he took to Mar-a-Lago on his way out of the White House.
Political fallout, precedent and national security risk are just some of the intangibles Garland will have to consider as he considers what would potentially be the highest-profile criminal case in American history, according to former prosecutors, intelligence agency lawyers and Justice Department officials.
One consideration for Garland is how Trump’s alleged actions stack up against other cases DOJ has brought or not brought over mishandling classified information. A second factor is how confident prosecutors are they could win at trial — knowing the political fallout of a losing case against a former president could be devastating.
And finally, Garland has to consider the damage that a trial might have on national security secrets, given the nature of the Mar-a-Lago document seizures.
Of course, one unknown ultimately looms large over all the other machinations: Does Garland view Trump’s cavalier and even defiant approach to the national security secrets at Mar-a-Lago as something of sufficient magnitude to bring the first criminal case against a former president in U.S. history?
“They’re going to have to be satisfied that they’re going to have a very, very strong case to present to a grand jury and ultimately to a jury,” said former CIA general counsel Jeffrey Smith. “If the prosecutors can get over all those hurdles, given that it’s a former president, it will be a tough call for the attorney general.”
“It seems to me it’s moving in the direction of warranting criminal charges,” said David Laufman, former chief of the counterespionage section at the Justice Department’s National Security Division. “I think [Trump] has significant criminal exposure. Whether they ultimately decide to exercise prosecutorial discretion in favor of prosecuting him is another question.”
The Espionage Act and nefarious intent
The Espionage Act — the key federal law governing classified information and one of the statutes used to get the search warrant the FBI carried out at Mar-a-Lago earlier this month — is exceedingly broad. As a result, prosecutors have developed a series of so-called “plus factors” that don’t appear in the statute itself, but inform decisions about whether to file criminal charges.
According to former prosecutors, the “plus factors” include whether a suspect had nefarious intent in gathering or keeping the information, whether they had clear knowledge of the materials they had and their gravity, the volume of material taken and whether they lied to investigators.
Basic violations of the rules surrounding classified information are routine. Classified documents are left out overnight. A safe for storing secret records isn’t locked. A briefcase with sensitive information is left behind in a hotel or restaurant. An email containing classified information is sent on an unclassified system.
Most such violations result in a warning. The more serious ones can result in having one’s security clearance suspended or even revoked. Only in the most egregious cases is prosecution even contemplated, even though many such violations might technically violate the law.
“A lot of these cases, these matters, are resolved primarily administratively,” Laufman said. “Among the aggravating factors are any obstruction of justice, particularly any effort to lie to or conceal about what took place.”
A major trigger for prosecution: deceit
When former CIA Director and Army Gen. David Petraeus came under investigation for storing highly classified journals in his residence and sharing information with his biographer, according to former officials, one factor that led to his criminal prosecution was that he lied to the FBI by denying any such sharing.
In fact, the false statements — which Petraeus admitted to in a 2015 plea deal with the Justice Department — so exercised FBI officials that they thought he should be charged with a felony. Ultimately, though, the retired general pleaded guilty to a misdemeanor and escaped jail time.
What should have Trump worried, former prosecutors say, is the Justice Department increasing focus on obstruction of justice as part of the Mar-a-Lago records probe. In a court filing Tuesday night, prosecutors said the FBI obtained several indications that someone was “likely” trying to hide or relocate documents after the Justice Department obtained a grand jury subpoena in May for all records there that bore any classification markings.
There were signs documents were subsequently moved from the storeroom where many of them were stored, the filing said. In addition, prosecutors got evidence that a sworn declaration prepared by Trump lawyers that insisted all such records had been turned over to the government simply wasn’t true—a claim borne out by the additional trove of classified records the FBI found when it raided the compound on Aug. 8.
It’s not clear why the declaration asserted everything was given to prosecutors in June when that wasn’t the case. “Either they wittingly lied or they got that assurance from their client, in which case Trump has jeopardy,” Laufman said.
While evidence of deceit sometimes prompts prosecutors to bring a charge for mishandling classified information, trying to trick the government is a separate, very serious crime. Prosecutors could add that charge to a case against Trump or others, or the Justice Department might bring an obstruction charge alone and avoid some of the complexities of a charge over the secrets themselves.
Very sensitive secrets draw special scrutiny
Prosecutors also usually reserve criminal prosecution for cases involving either a vast trove of information or secrets that are particularly sensitive.
So far, the precise nature of the documents found at Trump’s Florida home isn’t clear, but the FBI has said 15 boxes of records that were shipped back to Washington from Mar-a-Lago early this year contained human intelligence information and signals intelligence. The records found in the Aug. 8 search are still undergoing review, but a photo included in a DOJ court filing Tuesday shows markings and cover sheets signaling “Secret,” Top Secret” and “Sensitive Compartmented Information.”
Despite those markings, Trump’s lawyers have suggested the information involved was trivial.
In an interview Monday on Fox News, Trump attorney Jim Trusty compared Trump’s actions in retaining the allegedly classified information as akin to “an overdue library book.” Trusty also suggested that Trump isn’t getting a fair shake from prosecutors, calling them “people that are perhaps holding this president to a different standard than anyone else.”
Former officials say it’s worrisome that information derived from human sources or foreign intercepts was laying around at a former president’s home, which also serves as a private club open to hundreds of people, but that the markings alone don’t tell you precisely how sensitive the individual documents are.
“At this point, we don’t know about the seriousness of this material,” said Smith, the former CIA lawyer. “I worry a little bit about people on the left and the right running around with their hair on fire when we don’t really know.”
Prosecutors also try to assess whether a suspect was merely hoarding material or had the intention of sharing the secrets with others, especially foreign governments. Some on the left have speculated that Trump was keeping the documents to give them to foreign governments or try to blackmail people, but former National Security Adviser John Bolton said Tuesday that his former boss isn’t capable of that sort of caper.
Bolton said Trump showed frequent disregard for the classification systems, but the former aide cautioned against spinning flamboyant theories about the former president’s intent.
“By overstating their case, Trump’s opponents lost two impeachments in a row and risk an indictment here that they can’t prove that Trump would be acquitted,” Bolton told Julie Mason on SiriusXM. “The two earlier defeats on impeachment really emboldened–empowered Trump and, if they’re not careful, they’re going to do it again.”
The risks of a trial
Another consideration: whether charging Trump could compound the danger of whatever secrets he had at Mar-a-Lago leaking out before or during a trial.
Laufman said prosecutors would likely try to mitigate that risk by charging only over a limited set of documents and sometimes leaving out those that pose the most ongoing risk to national security.
“The government has to choose what documents will be used as evidence and that selection process is a thing unto itself,” he said. “They’ll try, ultimately if they make this decision, to choose documents as intrinsically palpably sensitive to any juror who’s confronted with them without presenting undue harm.”
Laufman and Smith both pointed to safeguards that can be used to try to limit the disclosure of the classified information during any trial, including having some evidence that isn’t seen by the public or read aloud in court.
Prosecutors can get permission to show classified information to jurors, but a report on the Hillary Clinton e-mail probe says investigators opted against taking some witnesses to a grand jury because of a desire not to share the secrets involved more widely.
The complication of Trump’s declassification powers
A prosecution of Trump could also raise unique issues because, as president, he had power to declassify almost any information. He and his allies have claimed he did so either verbally or by implication through his practice of bringing some records to the White House residence, although no concrete evidence of such an arrangement has emerged.
“It was all declassified,” Trump asserted earlier this month.
It’s unclear how big an obstacle prosecutors will consider Trump’s claims, but some legal observers aren’t impressed.
“It’s hogwash,” Smith said. “You have nothing beyond the president deciding it was his …. It has all the earmarks of a post-action justification.”
Prosecutors appear to agree, noting in their Tuesday night filing that during the back-and-forth about the documents Trump’s lawyers never said anything about a declassification.
The dangers of going too easy
While Trump allies are already pressing Garland to forgo any prosecution, going easy in any publicized classified-information case can have real consequences down the road.
The relatively light charge and punishment Petraeus received has been cited by defendants in numerous classified information cases since as grounds for leniency or evidence of a double-standard for high-ranking officials.
Use of the presidential pardon power has also fueled that perception: In 2001, President Bill Clinton pardoned former CIA Director John Deutch as he was on the verge of pleading guilty to a misdemeanor for keeping top secret codeword information on computers at his homes in Maryland and Massachusetts.
And in 2017, President Barack Obama pardoned one of his favorite military officers, Gen. James Cartwright, who had pleaded guilty to lying to the FBI in an investigation of leaks of highly classified information about how the Iranian nuclear program was severely set back through a computer virus. Prosecutors wanted Cartwright sent to prison for two years.
Although none of the prior episodes is identical to what Trump allegedly did, the key challenge for Garland in making the high-stakes decision about the former president is captured in another of the attorney general’s favorite phrases: “We treat like cases alike.”