Republicans are treating the investigation of defeated former president Donald Trump’s purloining of classified government documents as another opportunity to play victim and attack law enforcement. U.S. District Court Judge Aileen Cannon, a last-minute Trump nominee jammed through during the 2020 lame-duck session, seems to be contemplating a special master to review the documents one by one to see whether there is some basis for blocking them from prosecutors, even as the intelligence community feverishly conducts a national security review. (Trump is bizarrely asking the court to block the Justice Department from seeing what intelligence reviewers already are examining. One longs for the “unitary executive theory” to be applied consistently.)
Even former attorney general William P. Barr observes, “Well, I think the whole idea of a special master is a bit of a red herring ... at this stage, since they have already gone through the documents, I think it’s a waste of time.” He added, “I think the driver on this from the beginning was loads of classified information sitting in Mar-a-Lago. People say this was unprecedented, well it’s also unprecedented for a president to take all this classified information and put them in a country club.”
Alas, Barr’s party cares not one whit about national security, only the security of their cult leader and his war on American intelligence.
The extent of the national security crisis Trump thrust upon us has not yet been fully appreciated. The more detailed inventory released on Friday is jaw-dropping. As the Associated Press reports: “Though the inventory does not describe the content of the documents, it shows the extent to which classified information — including material at the top-secret level — was stashed in boxes at the home and mixed among newspapers, magazines, clothing and other personal items.” The volume of documents is even more troubling.
Contained in the inventory taken in August (and that had not been previously returned in response to a subpoena) are “more than 100 documents with classification markings ... including 18 marked top secret, 54 secret and 31 confidential.” Most chilling: “The inventory shows that 43 empty folders with classified banners were taken from a box or container at the office, along with an additional 28 empty folders labeled as ‘Return to Staff Secretary’ or military aide. Empty folders of that nature were also found in a storage closet.”
Where did the documents that were in those folders go? Were any of them destroyed, given away, copied, hidden, sold or shared? We don’t know, and that is a national security disaster given that the documents could have contained the names of human sources and signals intelligence.
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Former prosecutor Barbara McQuade tells me: “Finding empty folders marked classified must have made investigators sick to their stomachs.” She adds: “Not only does it raise the possibility that sensitive information may have landed in the wrong hands, but it also makes it almost impossible to decline to file criminal charges against Trump and the explosive sideshow that will come with it, an unenviable task for any prosecutor.”
Put differently, any delay in investigation, prosecution and hopefully recovery of documents that contain our nation’s most sensitive secrets would be a further risk to national security. Regarding empty files, Larry Pfeiffer, the director of the Hayden Center for Intelligence, Policy and National Security and a former chief of staff to the director of the CIA, tells me, “It’s disturbing on its face. Investigations will try to determine if some of these folders had contained some of the documents found and cataloged.” He adds: “I’m gobsmacked that this guy apparently had squirreled away over 11,000 government documents, classified and not, between the Oval and the Residence.”
Let’s imagine that Judge Cannon is willing, contrary to previous rulings in Trump-related cases, to find that Trump enjoys some residual executive privilege consideration. Nevertheless, as U.S. v. Nixon and its progeny have held, any such privilege claim pales in comparison to the interest in criminal prosecution.
The unanimous Supreme Court found, “Without access to specific facts, a criminal prosecution may be totally frustrated. The President’s broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.” It therefore held that “when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.”
And when that prosecution involves our most closely guarded secrets, any assertion of privilege is trivial, dangerous and improper. Moreover, the only interest Trump has here (because he is not the guarantor of national security) is the vague desire to conceal confidential communications that could potentially be used in his prosecution under the Espionage Act.
From former FBI assistant director Frank Figliuzzi’s vantage point, “It is a three alarm fire. ... I’m unclear as to whether the empty folders represent missing material, or, whether those contents were intermingled throughout the seized items.” As he tells me, “The problem, of course, is that even the FBI might not be able to determine what was supposed to be in those folders. … What a mess.”
It’s beyond time that Republicans demand not only candor from Trump — Why did he have documents? What did he do with them? — but also a full and swift investigation. And unless the court wants to rewrite decades of law, allow Trump to hold the nation hostage and deepen our national security crisis, Cannon should follow Barr’s advice, dismiss Trump’s claim and let the FBI get on with an investigation and any necessary prosecutions.