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Opinion The DOJ may be investigating Trump for removing classified materials. Prosecution is a different matter.

Attorney General Merrick Garland speaks during a news conference in Washington on Feb. 22. (Nicholas Kamm/Pool/AP)
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Attorney General Merrick Garland confirmed on Tuesday that the National Archives had informed the Justice Department that classified materials were removed from the White House before Donald Trump left office. “We will do what we always do under these circumstance: Look at the facts [and] the law and take it from there,” Garland said.

In other words, the Justice Department is investigating whether any laws were broken. If Trump were an ordinary federal employee, this could be a serious legal problem. But because he is the former commander in chief, prosecuting him for any violation of national security laws would be difficult. (Lawyers for Trump deny any wrongdoing.)

Improper handling of classified material has frequently been the basis for an enforcement action. Just few years ago, esteemed Army general and then-CIA director David H. Petraeus was prosecuted for providing classified materials to his biographer, with whom he was having an affair. The Justice Department seriously considered bringing charges against him for lying to the FBI during the investigation and for violating the Espionage Act.

The Post explained in 2016: “The Justice Department said the information, if disclosed, could have caused ‘exceptionally grave damage.’ Officials said the notebooks contained code words for secret intelligence programs, the identities of covert officers, and information about war strategy and deliberative discussions with the National Security Council.” Petraeus pleaded guilty to lesser charges, admitting that “he improperly removed and retained highly sensitive information.”

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In addition to the Espionage Act, a separate federal law specifies that anyone who “knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location” may be fined or face prison time. Another statute punishes anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys” a public document or “attempts to do so.” Samuel R. Berger, a national security adviser to President Bill Clinton, was prosecuted for snatching classified documents from an archive facility and pleaded guilty to a lesser charge in 2005.

The Presidential Records Act also makes clear that a president’s papers belong to the federal government and prohibits their destruction. The Post reports that while several presidents got tangled up on the law’s requirements, requiring retrieval of materials, Trump’s case “stands apart in the scale of the records retrieved from Mar-a-Lago.” Still, there are no criminal penalties per se under the act.

So where does this leave the Justice Department? Prosecuting under statutes relating to classified materials is tricky given that the president can declassify documents. The requirement that removal must have been done “knowingly” also poses a hurdle to any prosecution.

Garland is right not to brush the incident aside. He’ll need to determine exactly what sort of documents were removed; why they were lifted; whether Trump knew which documents were removed; and whether, for example, there was any plan to destroy them. After all that, he’ll need to establish whether the laws discussed above or any others were violated and, if so, whether prosecution is appropriate. Still, of all the potential offenses that state and federal prosecutors might pursue against Trump (from seditious conspiracy to financial crimes), it seems unlikely that this would be what the Justice Department hangs its hat on.

Republicans spent years pushing to prosecute Hillary Clinton for her use of a personal server only to be disappointed when then-FBI director James B. Comey found no “clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.” He declined to prosecute under a grossly negligent standard. The GOP was livid over this decision. Nevertheless, its hypocrisy and misuse of the criminal justice system to go after political opponents does not justify a Democratic administration prosecuting a far-fetched case without legal precedent.

In any event, voters can take comfort that the rule of law has been reaffirmed when no one, even a former president, is beyond investigation for possible crimes. They should also appreciate it when the Justice Department declines to prosecute someone on flimsy grounds that are unlikely to lead to conviction — even if that person has so grossly disdained the laws he was once in charge of enforcing.

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