Nine Former Prosecutors, Legal Experts Conclude Sufficient Evidence Exists For DOJ To Indict Trump In Classified Documents Case

“There is sufficient evidence to obtain and sustain a conviction.”

The Justice Department should indict former President Donald Trump for crimes relating to classified documents removed from the White House, according to a new report published in Just Security.

That conclusion is based upon government filings and statements and media reports concerning the evidence. The report was crafted as a model “prosecution memorandum” of the kind the Justice Department normally uses to determine if charges should be brought.

The report, “Model Prosecution Memo for Trump Classified Documents,”  was prepared by a team of former federal prosecutors, defense attorneys, and other legal and classification experts, including Andrew Weissmann, Ryan Goodman, Joyce Vance, Norman Eisen, Fred Wertheimer, E. Danya Perry, Siven Watt, Joshua Stanton, and Joshua Kolb.

The report was first published in November. This new second edition is a major update with significant new information and analysis.

“In the first edition of our model prosecution memo, we surveyed the evidence, the law, and the precedents and concluded there was a strong basis for prosecution. In the months since then the public record has grown stronger and so has our conclusion,” co-author Amb. Norman Eisen (ret.) said. “If reports of the evidence are accurate, Trump should be prosecuted — and likely soon will be.” Eisen was a lead drafter of Executive Order 13526, which governs U.S. document classification.

The Just Security report makes clear “that the only result consistent with the rule of law is that Trump face criminal charges, as anyone else would under similar circumstances,” co-author Andrew Weissmann said.  “Indeed, as the Memorandum sets out in detail, numerous people have been charged for crimes far less egregious than what Trump has been widely reported to have done.”

Restoring public confidence in the rule of law and reaffirming the principle that no man is above the law are critical to the ongoing health of the republic,” according to co-author Joyce Vance. “The publicly available facts and the law that we detail in this second edition of the Mar-a-Lago pros memo leads to the conclusion that indicting the former President is critical if that is to happen.”

“New revelations that Trump may have misled the government, willfully evaded subpoenas, and attempted to interfere with the investigation provide even more damning evidence that we have included in this report, ” co-author Fred Wertheimer said. “Our prosecution memo provides important background, guidance, and insight to understanding the laws involved as the investigation heads to a conclusion, which should result in an indictment of Trump.”

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.”

The report draws upon 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 possible 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 Justice Department’s “own precedent makes clear that charging Trump would be to treat him comparably to others who engaged in similar criminal behavior, often with far fewer aggravating factors than the former President,” the authors conclude. The report also relies on media reporting regarding evidence, and concludes that there is sufficient evidence for a conviction if government and media statements are accurate.

The deeply researched report, including extensive updates, analysis, and additional details compiled from media reports released since the first edition, contains 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 nearly two-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

• Retention of National Defense Information (18 U.S.C. § 793(e))
• Concealing Government Records (18 U.S.C. § 2071)
• Conversion of Government Property (18 U.S.C. § 641)

Obstruction, Contempt, False Information

• Obstruction of Justice (18 U.S.C. § 1519)
• Criminal Contempt (18 U.S.C. § 402)
• False Statements to Federal Investigators (18 U.S.C. § 1001)

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 discusses “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 Justice Department precedent and compares Trump’s conduct to others 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.

The full report is available online at Just Security.

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