Trump Could Soon Face Espionage, Obstruction Charges as Jack Smith’s Probe Closes In

The special counsel is mum, but all signs point toward charges. One of Trump’s former lawyers, Ty Cobb, predicts he ‘will go to jail.’

Department of Justice via AP
The House Judiciary Committee's investigation into a number of cases, including that of documents seized from President Trump's estate at Mar-a-Lago are likely to be stymied by the Justice Department. Department of Justice via AP

It is not yet known when — or if — Special Prosecutor Jack Smith will hand up an indictment against President Trump alleging crimes relating to the retention of documents at Mar-a-Lago. Preliminary proceedings are under seal. Signals suggest, though, that we could soon see white smoke emerge from Mr. Smith’s office.

To the extent that tea leaves are legible, they suggest a two-tiered threat for Mr. Trump, who could face charges relating to both how he handled the documents stashed at his Palm Beach manse and the efforts he undertook to obscure that reality. Both carry prison sentences, and it appears Mr. Smith is set to pursue both. 

The latest news, from via the Washington Post, is that the day before the FBI paid a visit to Mar-a-Lago in June, two of Mr. Trump’s employees moved boxes of papers. He also, according to the Post, “kept classified documents in his office in a place where they were visible and sometimes showed them to others.”

Most vivid of all is the new report that Mr. Trump and his aides staged a “dress rehearsal” last spring even before the former president was served with a subpoena, during which they are said to have gone through the paces of how and where to move sensitive material from one Mar-a-Lago chamber to another. The FBI’s search transpired in August, after this practice run allegedly occurred.

Of particular interest to Mr. Smith is an interaction between Mr. Trump’s valet, Walt Nauta, and a Mar-a-Lago maintenance employee, who, according to the Post, together moved classified materials into a storage room the day before a visit by the justice department’s top counterintelligence official, Jay Bratt, in June.

That maintenance employee is believed to be cooperating with Mr. Smith, as are the beleaguered staff of the National Archives, who have told Mr. Trump that they turned over 16 documents to the special counsel indicating Mr. Trump was fully warned of the proper process for returning confidential information. Material supplied by one of his lawyers, Evan Corcoran, reportedly indicates similar foreknowledge. 

Some of Mr. Smith’s evidence could be of a more explicit nature. Mr. Trump recently said at CNN’s now notorious televised “town hall” that had “every right” to take documents from the White House. He added: “I didn’t make a secret of it. You know, the boxes were stationed outside of the White House.”  

While these glimpses do not yet add up to a high-resolution picture of what was happening at Mar-a-Lago before it was swarmed by federal agents who recovered more than 100 documents on its premises, they could suggest double-barreled charges stemming from both the Espionage Act and obstruction.

The federal obstruction statute targets “Whoever 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” connected to a federal investigation. Prison time can stretch to two decades.     

Mr. Trump could also be vulnerable to charges of making false statements to federal investigators. The statute prescribes punishment for anyone who “falsifies, conceals, or covers up by any trick, scheme, or device a material fact” or “makes any materially false, fictitious, or fraudulent statement or representation.” A punishment of five years can be imposed for its violation.

One of Mr. Trump’s former lawyers, Ty Cobb, tells CNN that the preponderance of “evidence of guilty knowledge” on the part of the former president prefigures a “tight obstruction case.” Mr. Trump, he predicts, “will go to jail.” A possibility, no doubt, but prosecutors bear a higher burden “preponderance” of evidence of guilty knowledge.” In criminal law, the burden is beyond a reasonable doubt.   

Even if Mr. Trump manages to evade obstruction charges, the Espionage Act could loom large. It is actually a sequence of statutes that prescribe certain behavior related to the collection, retention, or dissemination of national defense or classified information. The Mar-a-Lago search warrant referred to a section that referenced “Gathering, transmitting or losing defense information.” 

The Espionage Act, which dates from 1917, was used to prosecute the analyst Daniel Ellsberg for leaking the Pentagon Papers. It was also used against the socialist Eugene Debs, the anarchist Emma Goldman, and the communists Julius and Ethel Rosenberg, who were executed. It was used to charge the WikiLeaks founder Julian Assange as well as the NASA contractor Edward Snowden. He is now in exile at Moscow.

Now, it is Mr. Trump who could feel its brunt, specifically a provision that concerns those who lawfully obtain a document “relating to the national defense,” and who convey it to “any person not entitled to receive it,” or willfully “retain” and “fail to deliver it on demand to the officer or employee of the United States entitled to receive it.” It makes no distinction between a spy, a whistleblower, or a president. 

Mr. Trump’s lawyers have accused Mr. Smith of pursuing a path of “aggressive combativeness” and turning an essentially administrative matter between Mr. Trump and the National Archives into a criminal investigation. Sitting presidents have the authority to declassify nearly all documents, but it is not clear whether President Trump took that step in respect to the relevant records    

Mr. Trump is likely to be hampered in his defense by a law signed nearly 50 years ago, the Presidential Records Act. Inked by President Carter in Watergate’s wake, it, in the words of the National Archives, “changed the legal ownership of the official records of the President from private to public,” a distinction that could soon haunt Mr. Trump.


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