A Strong Basis Exists For DOJ To Indict Former President Trump For Crimes Dealing With Mar-a-Lago Documents Case, According To Just Security Report

A strong basis exists for the Justice Department to indict former President Donald Trump for crimes dealing with the national security information removed from the White House and retained at Mar-a-Lago, according to a new report, “Mar-a-Lago Prosecution Memo,” published today by Just Security.

The report, based on publicly available information, was crafted as a “model prosecution memorandum” and assesses the potential charges against former President Trump emanating from his handling of classified documents and other government records since leaving office, including crimes related to the removal and retention of national security information and obstruction of the investigation into his handling of these documents.

The 169-page report was prepared by a team of former federal prosecutors, defense attorneys, and other legal experts, including: Andrew Weissmann, Ryan Goodman, Joyce Vance, Norman L. Eisen, Fred Wertheimer, E. Danya Perry, Siven Watt, Joshua Stanton, Donald Simon, and Alexander K. Parachini.

“Our exhaustive analysis of all prior prosecutions brought under the same criminal statute that most directly applies to Trump shows how difficult it will be for the Justice Department to decline to issue an indictment here,” co-author Goodman said. “Trump’s conduct is indeed much worse than most of those prior cases and involves a host of aggravating factors that one seldom sees in cases brought under the Espionage Act’s retention clause.”

In considering prosecution of a former President, the authors write, “we begin with the standard articulated by Attorney General Merrick Garland: ‘Upholding the rule of law means applying the law evenly, without fear or favor.’ In other words, this case must be evaluated for prosecution like any other case with similar evidence would be, without regard to the fact that the case is focused on the conduct of a former President of the United States.”

“If anyone else had handled even a single highly classified document in this way, they would be subject to investigation and likely prosecution. Donald Trump mishandled a huge volume of them,” co-author Eisen said. “No wonder that prosecutors seem to be closing in. We hope this prosecution memo is useful to decision-makers, the press, and the public as they consider the legal issues raised by the former President’s actions.”

One of the main contributions of the Just Security report, co-author Weissmann said, “is its compendium of prior DOJ cases, which provide key data for assuring that Trump is treated no better or worse than other people in comparable circumstances. An indictment of Trump would be compelled by that precedent if we are governed by the rule of law where we are all treated alike, regardless of station.”

“Trump’s status as a former President and as a current presidential candidate is and must be treated as irrelevant by Attorney General Merrick Garland in deciding whether to indict Trump,” co-author Wertheimer said. “Garland’s decision must be based on the facts, the law, and the standard of applying the law equally for all citizens, as detailed in our report. The process also is far too advanced to now start over with a special counsel to lead the investigation.”

The report draws heavily and as much as possible on the unusual amount of factual information provided by the government in its court filings. “We do not, however, have visibility into the full volume of information the Justice Department has assembled,” the authors note. “That means we could be missing important facts, including exculpatory evidence, that may inform DOJ’s decision-making process. We may be unaware of admissibility issues with some of the evidence. And equally true, the evidence could be better or more extensive than what is available in the public record.”

The extensively researched report includes five parts.

Part I provides a detailed summary of the relevant facts under investigation.

The report discusses Trump’s resistance to the Government’s attempts to recover the documents, including the more than one-and-a-half-year effort by the National Archives and Justice Department to recover the documents. Those efforts culminated in the FBI’s court-authorized search of Mar-a-Lago in August 2022 that led to the recovery of approximately 13,000 documents, including information on some of the nation’s most sensitive national defense programs.

The report discusses several efforts Trump made to conceal the documents, including his efforts, personally or through agents, to obstruct the investigation and impede the Government’s ability to recover the documents. The report also details evidence that Trump had knowledge that he had the documents, that he was directly involved in handling them, and that Trump’s own lawyers provided numerous warnings making him aware that he could not lawfully retain the documents.

Part II explains the federal criminal statutes potentially applicable to Trump’s conduct, noting the criminal statutes alleged in the Mar-a-Lago search warrant and additional federal offenses that could potentially be charged. The report discusses six potentially relevant federal criminal statutes:

Mishandling of Government Documents

Part III applies Trump’s alleged conduct to the elements of those six criminal statutes. The Government would need to prove that Trump acted knowingly and intentionally to secure a conviction for several of these offenses and for other crimes. The report analyzes “Trump’s awareness and intent, for which there is considerable evidence.”

Part IV discusses whether charging Trump under these statutes would be in line with established DOJ precedent and compares Trump’s conduct to the individuals who have been charged under the same statutes. The report determines “there is strong precedent for the DOJ to charge Trump. There are many felony cases that the DOJ pursued based on conduct that was significantly less egregious than the present set of facts in the Trump case.”

Part V considers several defenses that Trump may attempt to assert if charged under the statutes examined in the report.

A discussion of the report with co-authors Andrew Weissmann, Joyce Vance, and Ryan Goodman is on the Just Security podcast.

The full report is available online at Just Security.