The next criminal charges former President Donald Trump may face could well come from Special Counsel Jack Smith’s investigation into Trump’s possession of nearly 300 classified documents — including some marked as top secret — at his Mar-a-Lago residence and business in the year and a half after he left office. While Fani Willis’ Fulton County, Georgia investigation into election interference continues, as does a federal investigation into efforts to overturn the 2020 election, and Alvin Bragg has already indicted Trump in New York for his role in false statements connected to hush money payments to Karen McDougal and Stephanie Clifford (aka Stormy Daniels) during the 2016 presidential campaign, an indictment by Smith in the Mar-a-Lago investigation would yield the first federal charges against the former president. Trump may face charges ranging from obstruction of justice and criminal contempt to conversion of government property and unauthorized removal and retention of classified documents or material.
Attorney General Merrick Garland appointed Jack Smith as Special Counsel in November 2022 to investigate interference with the transfer of power following the 2020 election as well as Trump’s retention of classified records and potential obstruction of justice. Smith’s appointment came after over a year of efforts by the National Archives and Records Administration (NARA) and the Justice Department to have Trump voluntarily turn over presidential records in his possession as required under the Presidential Records Act of 1978, a standoff that only ended after a federal court approved a request by the FBI to search Trump’s Mar-a-Lago residence for classified documents.
Under the Presidential Records Act, presidential records are considered federal property and are required to be turned over to NARA upon the president leaving office. On January 20, 2021, Trump left the White House for his home in Florida. Members of Trump’s transition team were responsible for packing his things and were required by the General Services Administration to certify in writing “that the items being shipped were required to wind down the Office of the Former President and would be utilized as the Office transitioned to its new location in Florida.” In May 2021, NARA found that documents were missing from the material received from Trump when he left office; the agency requested the records from Trump on or around May 6, 2021. NARA then engaged in prolonged discussions with Trump representatives to acquire the records.
In late December 2021, NARA was informed by a Trump representative that at least 12 boxes of records had been found at Trump’s Mar-a-Lago residence. In January 2022, Trump’s team turned over 15 boxes of documents from Mar-a-Lago to NARA for their review; NARA determined that 14 of those 15 boxes contained classified material and, in February, referred the matter to the Justice Department for criminal investigation. After several months and repeated attempts to retrieve additional documents, on May 11, 2022, the Justice Department obtained a grand jury subpoena seeking “any and all” documents bearing classification markings in Trump’s possession. Investigators suspect, based on witness statements, security camera footage, and other documentary evidence, that following the subpoena, Trump personally examined documents stored at Mar-a-Lago.
In response to that subpoena, on June 3, 2022, the Justice Department obtained a single envelope from Trump’s attorney at Mar-a-Lago containing 38 documents, 17 of which were marked top secret, 16 marked secret, and 5 marked confidential. They also received a signed certification from Trump’s attorney Christina Bobb that following a “diligent search,” no further classified documents remained at Mar-a-Lago. It subsequently became public that despite signing the certification, Bobb had not personally conducted a search for the documents but rather had been directed to sign it by another Trump attorney, Evan Corcoran.
On August 8, 2022 the Justice Department executed a warrant to search Mar-a-Lago for additional classified materials. FBI agents seized more than 100 classified documents from both the storage room at Mar-a-Lago and desks in Trump’s personal office. Among the documents were some with classification levels so restricted that even the FBI counterintelligence personnel and DOJ attorneys conducting the review required additional clearances to review them.
The FBI and Department of Justice routinely prosecute individuals, including high-level officers like former CIA Director David Petraeus, for misusing classified documents. There are several criminal provisions that may be implicated, depending on the exact contents of the documents.
Obstruction of justice (18 U.S.C. § 1519)
Obstruction of justice is the impediment of government activities. There are several statutes that criminalize different types of obstruction, including 18 U.S.C. § 1519 which criminalizes obstruction of justice when an individual “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, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States.” Section 1519 is a felony, punishable by fine, imprisonment of up to 20 years, or both.
It seems rather straightforward for a prosecutor to prove that the classified documents retrieved from Mar-a-Lago were concealed (e.g. their disclosure was prevented by Trump refusing to turn them over to the DOJ and NARA) and that Trump’s concealment was done “knowingly” given that Trump has admitted that he knowingly took documents from the White House and investigators even suspect that Trump personally examined relevant documents at Mar-a-Lago following the May 11 subpoena. Conviction therefore turns on whether the statute’s specific intent requirement is satisfied, which it likely is here.
A defendant has the specific intent required under § 1519 when they know their conduct would obstruct a federal investigation, regardless of whether or not an investigation was pending at the time. Given the repeated attempts, including court orders, that the government undertook to investigate and recover these documents, it seems quite likely that Trump knew he was obstructing a federal investigation in his repeated refusals to comply with NARA’s and DOJ’s attempts to recover the presidential records. Moreover, prosecutors have also apparently learned that two of Trump’s employees moved boxes of papers the day before FBI officers visited Mar-a-Lago in June 2022 to retrieve classified documents in response to a subpoena. Trump’s conduct wasn’t innocent or pursuant to routine document retention policies. Rather, it was seemingly purposefully designed to permit him to retain documents that were legally the possession of the United States government.
Criminal contempt (18 U.S.C. § 402)
Criminal contempt is another obstruction charge, this one based on willful disobedience of a court order, such as a grand jury subpoena. Conviction under § 402 requires a prosecutor to prove, beyond a reasonable doubt, that a lawful order was issued by a federal court and the defendant willfully and unlawfully violated that order. Criminal contempt is a misdemeanor, punishable by a fine up to $1,000, up to 6 months imprisonment, or both.
The May 11, 2022 grand jury subpoena requested “[a]ny and all documents or writings in the control or custody of Donald J. Trump and/or the office of Donald J. Trump bearing classification markings…” This subpoena was unquestionably a lawful order issued by a federal court. Conviction here requires showing that Trump knew about the order and deliberately or recklessly violated it. Although the subpoena was addressed to the Office of Donald Trump and not Trump individually, it stretches credulity to claim that he wasn’t aware of it. Trump’s personal examination of classified documents in his possession following the court order is additional evidence that he knew about the subpoena and the need to respond to it. Moreover, Trump attorney Christina Bobb’s false signed certification that no classified documents remained at Mar-a-Lago seems highly unlikely to have been sent to the DOJ without Trump’s knowledge, indicating that he likely deliberately or recklessly defied the subpoena.
False statements to federal authorities (18 U.S.C. § 1001)
The Department of Justice frequently brings charges under 18 U.S.C. § 1001, which makes it a crime for someone to make a willfully false written or oral statement about a material fact to a federal investigator or agency. Importantly, under § 1001 the government need not prove that the defendant himself made the statement, but rather that he caused it to be made.
To charge Trump with a violation of § 1001, the government will need to prove beyond a reasonable doubt that Trump knowingly and willfully caused his attorneys to submit false statements. For example, we know that Trump attorney Christina Bobb signed and submitted the June 2022 certification that no further classified documents remained at Mar-a-Lago at the direction of another Trump attorney, Evan Corcoran. Prosecutors however would have to prove Trump’s involvement in causing this certification to be made in order to bring a § 1001 charge. From public reporting it seems that the Justice Department may be viewing both Bobb and Corcoran as witnesses, rather than targets of the investigation. Although attorneys are generally precluded from testifying against their clients under attorney-client privilege, that privilege has several exceptions, including a crime-fraud exception, which may be relevant here.
Conversion of government property (18 U.S.C. § 641)
The Department of Justice uses 18 U.S.C. § 641 to prosecute cases where classified government materials have been mishandled. In particular, § 641 makes it a crime for a person to willfully and knowingly convert a government document or record for personal use. The offense is a felony punishable by a fine, 10 years imprisonment, or both.
It is undisputed that classified government documents are things of value. Trump’s repeated refusal to comply with government requests to return the classified documents in his possession was done willfully and knowingly. The question then becomes whether Trump “convert[ed]” those government documents for his own personal use. Conversion under § 641 requires knowingly using the government documents “in a way that seriously interfered with the government’s right to use and control its own property.” Here, Trump’s use was retaining the documents — a retention that was incompatible with the government’s attempts to regain control of its property under the Presidential Records Act. Trump has previously stated that he did not want to return the documents because he believed they belonged to him. As recently as May 2023, Trump claimed that he would have the right to show the documents to anyone, and investigators have questioned witnesses about whether Trump showed these classified documents to anyone, including political donors.
Unauthorized removal and retention of classified documents or material (18 U.S.C. § 1924)
The Department of Justice frequently charges individuals — including high-ranking officials like David Petraeus — with violations of 18 U.S.C. § 1924. Section 1924 makes it a crime for an officer or employee of the United States to knowingly remove classified documents with the intent to retain them in an unauthorized location. Since 2018 the offense has been classified as a felony, punishable by a fine, imprisonment of up to five years, or both.
The president, as chief executive officer of the United States, is plainly an “officer…of the United States” as Trump himself admitted in separate litigation. Moreover, the FBI’s August 2022 search of Mar-a-Lago clearly retrieved classified documents that were stored at an unauthorized location. Trump has admitted that he knowingly took these documents from the White House and illustrated his intent to retain them by his failure to comply with a federal subpoena to turn them over. Trump and his allies, however, have argued that prosecution under § 1924 or other similar statutes is uncalled for because he allegedly declassified the documents prior to his departure from the White House. There is no indication that this is the case. And, importantly, no steps were taken to modify the classification markings on the relevant documents — a prerequisite before documents can be actually declassified.
Removing and concealing government records (18 U.S.C. § 2071)
Willfully and unlawfully concealing government records with an intent to do so is a criminal act under 18 U.S.C. § 2071. A felony punishable by a fine of up to $250,000, imprisonment of up to 3 years, or both, a prosecutor would be required to prove that (1) a defendant willfully and intentionally concealed, removed, or destroyed; (2) a government document or record; (3) filed or deposited in any public office of the United States. It is clear that the documents in this case were “concealed” because their disclosure was prevented by Trump’s repeated efforts not to turn documents over to the DOJ and NARA and that the documents are government records because case law makes clear that presidential records material, like those retrieved from Mar-a-Lago, qualify under the statute. Prosecutors would have to go further however, proving that the concealment was willful and intentional. There is sparse precedent explaining when a document is “filed or deposited in any public office,” but the case law that does exist indicates that documents are considered filed if they are “records of a public office.”
Gathering national defense information (18 U.S.C. § 793(e))
One of a number of offenses under the Espionage Act, 18 U.S.C. § 793(e) criminalizes the willful retention of documents containing or pertaining to national defense information and failure to deliver such documents to appropriate government entities by those in unauthorized possession of or with access or control over such documents. Although the statute is associated with leaking classified information to foreign adversaries, by its terms it could apply here. Conviction under § 793(e) requires the government to prove: (1) the defendant had “unauthorized possession of, access to, or control over”; (2) any document relating to the national defense of the United States; (3) that the defendant had “reason to believe” could injure the United States; (3) yet “wilfully” retained the document; and (4) failed to return the document. Conviction under § 793(e) is a felony punishable by up to 10 years imprisonment, a fine of up to $250,000, or both.
It is clear Trump’s removal and retention of classified documents constitutes “unauthorized possession” (because he was no longer authorized to have them) and that he failed to return them when requested. A prosecutor would also have to prove that the retention was “wilful” and that the defendant had reason to believe the document could injure the United States. There is also a significant unresolved factual question to this charge that a jury would have to determine, namely, whether the information was related to the national defense of the United States. Classified information is not necessarily related to the national defense of the United States. Rather, information is related to the national defense of the United States when it is “directly and reasonably” connected to the U.S. national defense, is “closely held”, and disclosure would pose a risk to U.S. national security. Without knowing the exact contents of the documents retrieved from Mar-a-Lago, it is impossible to say whether they include information related to the national defense of the United States, although press coverage suggests that at least some of them do.
Near-Term Legal Issues
“Oversight” of the investigative process
Although Congress has the authority to conduct oversight of the executive branch and its agencies, as implied by the Constitution and confirmed on several occasions by the Supreme Court, this authority does not extend to interfering with the independence of our criminal justice system. That is why, historically, Congress has not interfered with pending criminal investigations and, in the rare instance in which Congress has requested materials pertaining to ongoing investigations, DOJ has refused to provide them.
Nonetheless, following the House Judiciary Committee’s recent attempts to obtain confidential files from Manhattan District Attorney Alvin Bragg’s office following his indictment of Donald Trump for hush money payments made in relation to the 2016 election, there is widespread speculation that the House Judiciary Committee may attempt a similar feat here. Indeed, Trump’s legal team has already requested that Congress make similar demands during the Mar-a-Lago investigation. Historical precedent makes clear that such a request would be overstepping, and that Special Counsel Smith would be well within his rights to decline.
Although the investigation into Trump’s mishandling of classified documents preceded his November 15, 2022 announcement that he is running for president, Attorney General Merrick Garland took the election into consideration when he appointed Special Counsel Smith. Special Counsels are attorneys appointed by the Justice Department to carry out investigations when there is a perceived conflict of interest or when their appointment is in the public’s best interest.
Department of Justice regulations state that, “Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charge, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” Because of this, by policy, the Department of Justice has an unwritten rule, the so-called “60 Day Rule,” that it will avoid taking public investigatory steps close to an election that could influence how people vote. For these reasons, if Special Counsel Smith is to charge Trump, he likely will do so before the 60 Day Rule would be triggered.
Potential defenses raised by Donald Trump
Trump’s lawyers have argued that he didn’t violate the law because the documents he retained had been unilaterally declassified. Presidents may classify and declassify materials at their discretion. Trump however has failed to show any evidence that he declassified the documents prior to their removal and retention. Moreover, some documents obtained by NARA seem to indicate that Trump knew how to properly declassify documents yet failed to take any of those required steps.
No “knowing” removal
Conviction of some criminal offenses, including § 1924, requires a knowing and unauthorized removal of documents. Trump’s attorneys have started to lay the groundwork to argue that the removal of these documents was not “knowing” and, instead, was the result of “institutional practice and procedures within the White House.” To that end, they blame NARA for allegedly not assisting in “pack-out” procedures for presidential records when Trump departed office, and point to a “compressed timeline” of only four years in office that allegedly put him at a disadvantage compared to other outgoing presidents and vice presidents.
This defense ignores the fact that NARA did provide staff to help pack out Trump and fails to address Trump’s conduct after the May subpoena, at which point the evidence suggests that Trump may have personally inspected documents with classified markings and, if so, thereby knew of their existence and removal from the White House. Moreover, Trump has admitted that he knowingly took documents from the White House, suggesting during a CNN town hall in May 2023 that he was allowed to take these materials with him when he left office.
Deference to the intelligence community
In an April 2023 letter to the House Permanent Select Committee on Intelligence, Trump’s lawyers argued that Trump’s alleged mishandling of classified documents was not criminal. Instead, the letter argues, that the Justice Department “should be ordered to stand down” and, in their stead, the intelligence community should “conduct an appropriate investigation and provide a full report to this committee.” This letter however seems to overlook the fact that the Office of the Director of National Intelligence did conduct a review in coordination with the Justice Department. Moreover, an intelligence review does not preclude a criminal investigation where the facts warrant, as they do here.
Challenging the constitutionality of the Special Counsel regulations
Trump’s lawyers may argue, as the National Legal and Policy Center (NLPC) already has, that Special Counsel Jack Smith’s appointment violates the Appointments Clause of the Constitution. The crux of the argument is that a special counsel cannot be named without Senate confirmation — an argument that was raised repeatedly to delegitimize former Special Counsel Mueller’s investigation into 2016 election interference.
This argument is flawed. Since 1999 the Department of Justice has had regulations in place that provide for the appointment of Special Counsels who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Jack Smith was appointed pursuant to this authority. In 2019, the U.S. Court of Appeals for the District of Columbia in In re Grand Jury Investigation upheld the special counsel regulations, concluding that a special counsel is an inferior officer under the U.S. Constitution and therefore does not require Senate approval.
How the Trump case differs from Biden’s and Pence’s possession of classified documents
In recent months, classified documents have been found in former Vice President Mike Pence’s home and in President Biden’s home and Washington think-tank. There are however significant differences between these cases and Trump’s mishandling of classified documents.
In the case of both Pence and Biden, a small number of classified documents were found in their possession. In both cases, NARA and the FBI were immediately contacted, took possession of the documents, and conducted voluntary searches of the premises to identify and remove any further documents. Unlike Trump, it appears based on the publicly known evidence that neither Biden nor Pence knew they were in possession of classified documents. Furthermore, both cooperated with law enforcement and immediately turned the documents over. Their actions therefore demonstrated a lack of willfulness or intent, particularly when compared to the year and a half of requests that NARA made to Trump and his team to retrieve classified documents, an effort that required a court ordered search of Mar-a-Lago because of Trump’s and his team’s seemingly repeated noncompliance.
It is very likely that Trump will soon face his first federal indictment for his possession and mishandling of over 300 classified documents at his Mar-a-Lago residence. Trump’s apparent refusal to cooperate with law enforcement to return those documents and the protracted attempts by the Department of Justice and NARA to retrieve them not only places Trump in legal peril, but differentiates his conduct from that of President Biden and former Vice President Pence. With three simultaneous investigations into former President Trump’s conduct moving forward in New York, Georgia, and at the Department of Justice, Trump’s legal woes have likely only begun.