Donald Trump has yet to face criminal charges for his efforts to incite a violent coup against the United States government. But Monday’s unprecedented FBI search of Trump’s Florida home appears to be part of a criminal investigation into his removal — a better word might be theft — of classified documents after he left the White House.
So instead of being charged as a violent insurrectionist bent on destroying American democracy, Donald Trump may go to jail for a much more mundane reason: He pissed off the nerds at the National Archives, the legal custodians of the missing documents, who then tipped off the Justice Department.
The FBI search really is evidence of a leak investigation — perhaps the biggest in history. But in legal terms, the case doesn’t appear that different from the many leak investigations that Trump’s own Justice Department aggressively prosecuted throughout his time in office. In fact, Trump put enormous pressure on the Justice Department to pursue leaks of classified information while he was president, usually related to negative disclosures in the press about him. Many of the people charged in cases involving leaks of classified information during the Trump administration came in connection to disclosures in the press about Trump or Russia, or both. The Intercept reported last year that the Trump administration had referred a record of at least 334 leaks of classified information to the Justice Department for criminal investigation.
In many cases involving leaks to the press, the Justice Department has wielded a century-old draconian law — the Espionage Act — that can potentially put away the leaker for decades. The government often uses the Espionage Act as a threat to intimidate leakers into pleading to lesser charges; the leakers often end up pleading to some charges related to the mishandling of classified information. The New York Times observed Tuesday that one of the laws that would come with lesser charges than the Espionage Act and which would seem to fit Trump’s case is Section 2071 of Title 18 in the U.S. code; under that law, an official who has custodial responsibility for the documents who then “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies or destroys” the records could face up to three years in prison and could be barred from running for federal office again.
Prosecuting under that statute would not seem to require the government to prove that Trump gave documents to foreign spies, the media, or other unauthorized people.
The FBI search, authorized by a search warrant approved by a federal judge, caught Washington by surprise, but it did not come completely out of the blue. A quiet battle between the National Archives, the Justice Department, and Trump has been underway over the issue since last year.
After Trump left office, the National Archives discovered that there were lots of records, documents, and other materials missing from the White House — and began to search for them. They found that Trump had at least 15 boxes of materials that he had taken from the White House to his Mar-a-Lago estate in Florida, and officials from the archives began to fight with Trump to get them back. When he finally returned the 15 boxes in January 2022, archives officials discovered that they included classified documents, and referred the matter to the Justice Department. The Justice Department opened a grand jury investigation, and a small group of federal agents went to Mar-a-Lago in the spring to look for classified documents. Obviously, Monday’s raid reveals that the Justice Department and the FBI believed that Trump had not been cooperative in their investigation, and that he still had more classified documents hidden away at his home, in violation of federal law.
While it is possible that the FBI search will not lead to criminal charges against Trump, it is really hard to see how U.S. Attorney General Merrick Garland and the Justice Department would have approved the historic step of an FBI search of a former president’s home without much higher stakes than just a bureaucratic attempt to retrieve missing presidential records. It also seems difficult to believe that the Justice Department would conduct such a politically radioactive search if officials were only considering some slap on the wrist in the case, like the light punishments applied in the past to former CIA Director John Deutch and former national security adviser Sandy Berger.
Clearly, a big question at the heart of the case is what was Trump planning to do with so many highly classified documents after leaving office. When it comes to Trump, it’s hard to go wrong thinking the worst. Clearly, they were documents he thought would somehow benefit him in the future — perhaps in another presidential campaign, in his own private dealings, or even with foreign leaders. It is not too much of a stretch to think that the Espionage Act might apply.
It is also difficult not to see that the case is drenched in irony. As a presidential candidate, Trump constantly attacked Hillary Clinton for her use of a private email server while she was secretary of state, supposedly putting classified information at risk. It turns out that the “Lock her up” chant may have used the wrong gender.