The former chief of the Justice Department's national security division said Tuesday that the search of Donald Trump's Mar-a-Largo home in Palm Beach, Fla., suggests that the former president may have violated the World War I era Espionage Act.
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The Espionage Act appears to apply to Trump's reported conduct. She said he could be charged with violating another federal statute that targets anyone who hides, removes, or obliterates public records.
The FBI affidavit that was used to justify the search of Trump's home had to be approved by a federal judge.
It couldn't be because we thought it was there a year ago. It would have to be certain that there is evidence of a crime in that location. The Department of Justice, probably at the highest levels, probably all the way up to the attorney general, agreed that this was a step that was important to take.
What Trump might have done with the highly classified material that was still believed to be at Mar-a-Lago would be one of the factors that the DOJ national security lawyers would be looking at. Some of this information could be shared with foreign adversaries outside of Mar-a-Lago. She said she would be worried about that.
Skullduggery co- hosts Michael Isikoff, Daniel Klaidman and Victoria Bassetti conducted an edited conversation with the interviewer.
The home of the former president of the US has been raided by the FBI. Trump said that his safe was broken into. Do you think it's a good idea?
I would argue with the terms you used. aid got into his safe.
Isikoff said that according to Trump.
Fair enough. The safe had to be included in the terms of the search warrant in order for this to happen. The FBI needs to execute a search warrant that signals to the world that they have probable cause, and that the evidence of a crime will be located in the premises to be searched at the time it is searched. We thought the stuff was there a year ago but not now. It would need to be certain that there is evidence of a crime in that location. The Department of Justice, probably all the way up to the attorney general, agreed that this was a step that was important and legally-supportable.
Isikoff wants to know what the potential crimes are here.
There are a variety of possible crimes, but I think the two that are worth focusing on the most are 18 USC 2071 and the conspiracy to commit that crime. This applies to any federal government employee who hides, removes, or obliterates public records. Public records include records that are publicly available. The Espionage Act is one of the potential crimes. There are provisions that allow documents to be lost, stolen, or destroyed if they are mishandled through grossNegligence. The 18 USC 793 contains conspiracy provisions. It is possible to prove gross negligently because that is even beyond gross negligently.
Does that mean that there was some sort of obstruction going on?
After it was revealed that documents had been taken, presidential records had been taken to Mar-a-Lago. The National Archives got fifteen boxes back. The consultations happened with the archives. Even if the documents were accidentally removed, it has been called to the president's attention. The president's lawyers have been following it. There was an effort to get the presidential records back after they were mistakenly taken. This idea that it was a mistake. The man doesn't have that anymore. I think that's important because it shows. You had the opportunity. You argue a wrong thing. The department believes you still have documents. The question is why Yes, right?
The New York Times is reporting that the chief of counter-intelligence and export control of the Department of Justice went to Mar-a-Lago in June to look at some of the documents. What do you know about the person who went to Mar-a-Lago?
I believe it is significant. The litigating division is within the Department of Justice. We're talking about national security implications, not just presidential records that aren't classified, because we have a national security division lawyer such as Jay Bratt.
When you were the head of the national security division, what kind of evidence did you want to see before you approved a search warrant?
In a case like this, where we're talking about a former president, what prudential concerns would go into it? There are also risks to national security. I would think about whether or not I could make a case in court. The equity holder of the national defense information won't allow me to put it in court because they don't think it's national defense information. It would cause significant damage to U.S. national security if it were made public. Sometimes our national security agencies do not want to admit to things. There are a lot of things you would be looking at when it comes to the former president. This is the first time that's happened in this area. It would be more than that. "Where are we heading from here?" would be the question. Are we going to seek an indictment if we find something? There are different things to weigh. I don't know how significant the documents are. National security information is very sensitive. Some of this information could be shared outside of Mar-a-Lago with foreign enemies. I would be worried about that.
Sandy Burger was Bill Clinton's national security advisor and after he leaves office he goes into the National Archives to prepare for his testimony. He gets charged with a crime. He gets fined and community service and gives up his law license. Some people try to steal old Civil War documents from the archives and use them for financial reasons. There are cases that meet the willfulness standard. It's difficult to see a set of circumstances that meet that standard.
The whole background history was pointed out here. I was put on notice that there were missing documents. He had his attorneys and consultants package up 15 boxes and send them back to the archives. Many lawyers and others talked about what the laws are that prohibit the taking of presidential records and also prohibit them from being handled as classified information. I can tell a story that wouldn't sound very different than putting classified documents in your pockets. When you're told that you may have classified information that needs to be returned, you have to decide what to keep and what not to. I don't think it's the same as going into the archives and walking out. What you have been told is not yours to take.
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