It gives me no joy to write this piece.
Even a cursory review of the redacted version of the affidavit filed in support of the government’s request for a search warrant at former President Donald Trump’s home reveals that he will soon be indicted by a federal grand jury for three crimes: removing and concealing national defense information, providing NDI to those not legally entitled to possess it, and obstructing justice by NDI not returning it to those legally entitled to recover it.
When he learned from a phone call that 30 FBI agents were standing on the doorstep of his Florida home with a search warrant and decided to reveal it publicly, Trump assumed the agents were looking for classified top-secret materials they would claim he had. criminally possessed. His assumptions were apparently based on his gut feeling and not on a sophisticated analysis of the law. Hence, he publicly boasted that he had released all the previously classified documents he was carrying.
Unbeknownst to him, the FBI had anticipated such a defense and are not preparing to charge him with possession of classified material, even though he possessed hundreds of voluntarily turned in materials marked “top secret.” It is irrelevant whether the documents have been released, as the FBI will charge crimes that do not require proof of classification. They told the federal judge who signed the search warrant that Trump still had NDI in his home. It seems they were right.
By law, it doesn’t matter whether the documents that NDI is classified on or not, because it is common and always criminal to have NDI in a non-federal facility, to let those without security clearance move it from one place to another , and to keep it from the FBI when they look for it. In other words, the lack of classification — for whatever reason — is no defense against the charges likely to be brought against Trump.
But by misinterpreting and underestimating the FBI, Trump was actually doing them a favor. One of the elements they have to prove for each of the three crimes is that Trump knew he had the documents. The favor he did was admit it when he boasted that they were no longer classified. He committed a mortal sin in the criminal defense world by denying something he had not been accused of.
The second element the FBI must prove is that the documents actually contain national defense information. And the third element they need to prove is that Trump put these documents in the hands of those not authorized to hold them and kept them in a non-federally secured place. Intelligence experts have already examined the documents from the Trump house and are willing to tell a jury that they contain the names of foreign agents secretly working for the US. This is the crown jewel of government secrets. In addition, Trump’s Florida home is not a safe federal facility designated for the deposit of NDI.
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The latest aspect of the Trump case that we have learned from the redacted affidavit is the impeachment charge. This is not the obstruction that Robert Mueller claimed to have committed during the Russia investigation. This is a newer obstruction of justice, signed by President George W. Bush in 2002, that puts much less of a burden of proof on the FBI. The older statute is the statute that Mueller claimed. It characterizes any material interference in a judicial function as criminal. So someone who lies to a grand jury or prevents a witness from testifying is committing this variant of obstruction.
But the Bush-era statute, the statute that the FBI is considering impeaching Trump violations, makes it a crime of obstruction by not returning government property or sending the FBI on a wild goose chase in search of something belonging to the government is and that you know you have. This statute does not require any legal proceedings to precede. It only requires the defendant to have government property, know he has it, and baselessly resist government attempts to get it back.
Where does all this leave Trump? The short answer is: In warm water. The longer answer is: He once again confronts the federal law enforcement and intelligence agencies for which he has rightly expressed such public disdain. He had valid statements during the Russia investigation. He has little ground to stand on today.
I have often argued that many of these statutes that the FBI has issued to protect itself are morally unjust and not enshrined in the Constitution. One of my intellectual heroes, the great Murray Rothbard, taught that the government protects itself much more aggressively than our natural rights.
In monumental irony, both Julian Assange, the WikiLeaks journalist who exposed US war crimes during the wars in Afghanistan and Iraq, and Edward Snowden, the former National Security Agency employee who made the US public public, are accused of the very same crimes likely to be brought against Trump. Trump argued that both Assange and Snowden should be executed. Fortunately for all three, these statutes do not provide for the death penalty.
Rothbard warned that the FBI is aggressively protecting itself. Yet both Assange and Snowden are heroic defenders of liberty with valid moral and legal defenses. Assange is protected by the Pentagon Papers case, which insulates the media from criminal or civil liability for revealing stolen matters of public interest, so long as the revealer is not the thief. Snowden is protected by the constitution, which expressly prohibits the unauthorized surveillance he exposed, which was the most massive abuse of government power in peacetime.
What will Trump say as his defense against taking national defense information? I can’t think of a legally feasible one.
Andrew P. Napolitano, a former judge of the New Jersey Superior Court, has published nine books on the United States Constitution.
This article originally appeared on New Jersey Herald: Donald Trump will be indicted soon. This is why
