It was 2016, the presidential candidate under investigation was Hillary Clinton and then-FBI Director James Comey outlined the factors the Justice Department considers when deciding whether to someone should be charged for mishandling classified records.
Fast forward to 2022 and this tutorial proves instructive as another candidate in this election, Donald Trump, becomes entangled in an FBI investigation tied to sensitive government documents.
It’s unclear whether an FBI search of Trump’s Mar-a-Lago residence is a prelude to criminal charges. Monday’s action nevertheless draws attention to the thick of laws that govern the handling of government records, though the department’s own history of prosecutorial discretion – some high-profile investigations have ended without charge. or in tort plea agreements – makes it difficult to predict with certainty what might happen this time.
“These are laws that have never been enforced to their fullest extent,” said University of Texas law professor Stephen Vladeck.
Much remains unclear about Monday’s search, including precisely what documents the FBI was looking for — Trump says agents opened a safe — or why he acted when he did. But people familiar with the matter say it is an ongoing Justice Department investigation into the discovery of classified documents in White House document boxes that the National Archives and Records Administration recovered in Mar -a-Lago earlier this year.
To obtain a search warrant, the Justice Department would have had to persuade a judge that there was probable cause that a crime was committed, although it is unclear what law officials believe may have been breached. .
Several federal laws require the keeping of government secrets. A potentially relevant law makes it a crime to delete classified information and store it in an unauthorized location. Another makes it illegal to mishandle national defense information, including maps, photographs and documents, or pass it on to someone not authorized to receive it.
But if the past is any precedent, the mere mishandling of classified information isn’t always enough for a felony conviction — or any charge.
“It often comes down to whether there are aggravating factors in these cases,” said David Laufman, a Washington attorney who, as head of the Department of Justice, oversaw the Hillary Clinton investigation.
These include, he said, the amount of mishandled classified information, the extent to which the person knew they were in possession of classified information and the sensitivity of the material and whether its exposure would endanger the national security of the United States.
The FBI said so in 2016 when it closed without recommending charges an investigation into whether Clinton mishandled classified information through a private email server she used as secretary of state. Comey said officers determined she sent and received emails containing classified information, but there was no indication she intended to break the law. He said no reasonable prosecutor would have brought such a case.
To prove his point, he said a review of previous Justice Department cases found that every prosecution involved a combination of: intentional mishandling of classified documents; the extensive exposure of documents in a manner suggesting willful misconduct, disloyalty to the United States, or obstruction of justice.
In another notable case, former CIA director David Petraeus was allowed in 2015 to plead guilty to a misdemeanor charge of unauthorized removal and retention of classified information, avoiding jail time as he admitted to having shared notebooks containing government secrets with his biographer. The resolution came two years after an FBI search of his home and despite Petraeus’ acknowledgment that he knew the information he was sharing was classified.
It remains to be seen what arguments Trump might raise as the investigation progresses. His lengthy statement disclosing the search did not address the substance of the investigation, instead complaining that the FBI’s action was a “militarization of the justice system and an attack on radical left-wing Democrats.”
Christina Bobb, a lawyer for Trump, said in an interview that aired Tuesday on Real America’s Voice that the warrant’s supporting documents remained sealed and she had not seen them. But she said investigators said they were “looking for classified information that they believe should not have been removed from the White House, as well as presidential records.”
She claimed that the president himself decides what a presidential file is, and it is true that Trump could claim that as president until January 20, 2021, he was the original classification authority and had declassified the classified material recovered from Mar-à-Lago on its own initiative.
But, said law professor Vladeck, it would be a “pretty astonishing” argument for Trump to claim in his defense that he had “declassified all of our crown jewels” and, in doing so, effectively admit that he was a “threat to our national security.”
And, Laufman said, “The fact that he has legal authority does not mean … that whatever he might have chosen to take from the White House and squirrel at Mar-a-Lago is declassified. The process declassification doesn’t exist in Donald Trump’s head. It’s not self-executing.
It is also possible that he is saying that he was unaware of the contents of the boxes when they were packed. His son Eric told Fox News the boxes were among the items that were moved out of the White House for “six hours” on Inauguration Day. But even if so, he still would have had a legal obligation once he learned of the presence of classified information to turn it over, Laufman said.
There are other laws that could come into play that do not explicitly relate to classified information. One law in particular makes it a crime for a person in possession of government records to intentionally mutilate, erase or destroy them. This law is punishable by up to three years in prison and stipulates that anyone convicted is disqualified from holding future office, although the qualifications of who can run for president are established by the Constitution.
In any event, key questions remain unanswered, including whether the investigation is focused on “the act of keeping all this material at Mar-a-Lago” or what the material actually is, Vladeck said. .
Given this mystery, he said, “We won’t know until we know for sure.”
This story has been corrected to show that the Petraeus case was solved two years after a search warrant was issued, not two months.