A defeated former president who was at the center of a failed coup allegedly walks out the door with nuclear secrets, refuses to give them back and then leaves a creepy, semi-threatening message for the attorney general — that’s apparently where we are. Donald Trump and his apologists are as dangerous to our national security as spies and traitors who would spirit away our most closely held secrets.
The documents at issue supposedly include material so confidential it merits a top secret rating (TS/SCI) that no president — let alone an ex-president — can wish away.
Former FBI special agent and lawyer Asha Rangappa dismisses Trump’s assertion that he declassified everything: “The claim is bogus because clearly the current position of the United States government is that these documents are classified. This is controlling, whatever he did before he left office.” She adds, “He has no classification authority as of Jan. 20, 2021. Trump forgets that whatever awesome powers and immunities he held as president now belong to [President] Biden.”
Indeed, this nondefense bolsters the conclusion that Trump knew the documents were classified. “It is an admission because it would mean Trump had knowledge of the content of the documents, and that he apparently planned to remove them once relabeled,” observes Ryan Goodman, national security law expert and co-editor of Just Security.
The more facts we know, the worse it gets. According to New York Times reporting, “At least one lawyer for former President Donald J. Trump signed a written statement in June asserting that all material marked as classified and held in boxes in a storage area at Mr. Trump’s Mar-a-Lago residence and club had been returned to the government.” Perhaps Trump, a compulsive liar, and his counsel were less than honest.
Even more stunning, just before Attorney General Merrick Garland’s public announcement regarding the search, a close Trump associate reached out to DOJ with a message for Garland. Trump wanted Garland “to know that he had been checking in with people around the country and found them to be enraged by the search,” the Times reported. A threat? A plea? Maybe both, but it certainly reflects Trump’s telltale mix of ignorance, arrogance, lawlessness, narcissism and recklessness.
counterpointIt’s too soon to judge Trump on missing documents and fake slates
The Espionage Act seems tailor-made for this sort of case. “Even if Trump waved the presidential wand and made a top secret document unclassified, it would not alter one iota the intelligence community’s determination that the information, if released, could be ‘expected to cause exceptionally grave damage to the national security,’ ” Goodman tells me. “That kind of material goes to the very heart of what the Espionage Act is designed to protect.”
Trump will have a tough time proving he didn’t know how highly classified the material was. “Because DOJ bent over backward to accommodate Trump and asked him repeatedly for the documents, they can establish that he knew he was breaking the law and that he was trying to conceal classified material from investigators,” former prosecutor Renato Mariotti tells me.
Trump also may have liability under Title 18 Section 1519 of the U.S. Code, which makes it illegal for anyone who “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.”
“If they could prove, for example … that Trump was part of an agreement to lie, both he and his lawyer would be responsible under the 1519 offense that is identified in the search warrant,” former impeachment co-counsel and Brookings fellow Norman Eisen tells me. “The most likely application of that offense is to the concealment of documents, reportedly including a signed affirmation that there were no more classified [files] when there in fact were 11 sets of such documents remaining.”
He also might have liability, Eisen points out, under 18 U.S.C. Section 1001, for making a false statement and/or conspiracy to defraud the United States. (The latter also may apply to Trump’s coup.)
If the reported facts are true, Trump knowingly took the country’s most sensitive secrets, refused to give them back and, through his lawyer, falsely attested he had no such documents. Whatever his ultimate motive (e.g., selling secrets, showing he’s somehow still in power), no senior civilian official, let alone the president, has ever engaged in such appalling conduct. And the GOP not only defends him but smears and endangers the FBI through deliberate disinformation. No national party has ever done that, either.
Whatever criminal indictments follow, all but MAGA cultists should acknowledge that neither Trump nor his party is fit to hold office.