The year was 2016, Hillary Clinton was the presidential candidate under investigation, and James Comey, the FBI director at the time, outlined the considerations the Justice Department makes when determining whether to file charges against someone for improper handling of sensitive material.
In 2022, the teaching is still relevant because Donald Trump, another contender from that race, is involved in an FBI investigation using confidential government records.
It is uncertain if an FBI search of Trump’s Mar-a-Lago home is a precursor to criminal charges. Though the department’s own history of prosecutorial discretion makes it difficult to predict with certainty what might happen this time, the action on Monday nevertheless draws attention to the complex of laws that regulate the handling of government records. Some high-profile investigations have ended without charges or in misdemeanor plea deals.
Stephen Vladeck, a law professor at the University of Texas, stated that traditionally, these laws have not been fully implemented.
Trump claims that officers unlocked a safe during the search on Monday, although it’s unclear exactly what papers the FBI was seeking for or why it took the actions it did. However, others with knowledge of the situation claim that it is associated with a Justice Department probe into the finding of classified information in boxes of White House archives that the National Archives and Records Administration acquired from Mar-a-Lago earlier this year.
The Justice Department would have had to persuade a court that there was reasonable cause that a crime had been committed in order to get a search warrant, however it is unclear what legislation they believe may have been broken.
Several federal statutes mandate the preservation of state secrets. It is illegal to remove classified material and keep it in an unauthorized location, according to one possibly applicable legislation. Another makes it unlawful to transfer material related to national defense, including papers, maps, and images, to someone who is not authorized to receive them.
However, if the history is any indication, even handling classified material improperly may not necessarily be grounds for a criminal conviction or even charges at all.
“It typically boils down to whether there are aggravating elements in these instances,” said David Laufman, a Washington attorney who handled the Hillary Clinton investigation while serving as chief of the Justice Department’s counterintelligence and export control branch.
These, according to him, include the quantity of classified information that was improperly handled, the degree to which the individual was aware that they were in possession of secret information, how sensitive the information was, and whether or not its disclosure put U.S. national security at danger.
When it concluded its investigation into whether Clinton misused classified information while secretary of state by using a private email server, the FBI stated as much in 2016. Comey said there was no evidence that she meant to breach the law despite the fact that agents had found that she had sent and received emails containing classified material. No sensible prosecutor, he claimed, would have filed such a case.
He cited a review of prior Justice Department prosecutions to support his claim, claiming that each prosecution involved some combination of the following: willful misconduct, disloyalty to the United States, or obstruction of justice; willful mishandling of classified records; extensive material exposure.
Another notable instance is that of former CIA Director David Petraeus, who was allowed to plead guilty to a misdemeanor charge of the unauthorized removal and retention of classified information in 2015 and avoided going to jail because he admitted sharing notebooks with his biographer that contained state secrets. Petraeus acknowledged that he understood the material he was sending was secret, but the settlement came two years after an FBI investigation of his house.
It is unknown what defenses Trump may use as the probe develops. He did not address the specifics of the investigation in his long statement announcing the search, instead alleging that the FBI’s move was “a weaponization of the Justice System and an attack by Radical Left Democrats.”
Trump’s attorney Christina Bobb claimed that she had not seen the warrant’s supporting papers during an interview that was shown on Real America’s Voice on Tuesday. She said, however, that investigators claimed to be “searching for secret material and presidential papers that they believe should not have been removed from the White House.”
She said that it is up to the president to choose what counts as a presidential record, and it is true that Trump might contend that, as president from Jan. 20, 2021, he served as the original classification authority and had personally declassified the documents found at Mar-a-Lago.
Though it would be a “very astonishing” response, according to law professor Vladeck, for Trump to assert that he had “declassified all of our crown jewels” and so essentially acknowledge that he posed a “danger to our national security.”
Furthermore, Laufman noted that “just because he has legal standing doesn’t imply that whatever he may have chosen to take from the White House and hide away at Mar-a-Lago gets declassified. In Donald Trump’s mind, the declassification procedure does not exist. It doesn’t operate on its own.
He can possibly claim that he didn’t know what was in the boxes since they were being packed. According to his son Eric, during the “six hours” on Inauguration Day, goods were taken out of the White House, including boxes. Even so, according to Laufman, he would have been required by law to return the secret material as soon as he was made aware of its presence.
There are additional laws that could apply even though they don’t specifically address classified information. One statute specifically makes it a crime for someone to knowingly mutilate, erase, or destroy government data while in their possession. Although the Constitution specifies who is eligible to run for president, that legislation stipulates that anybody found guilty of it is barred from holding any future office and is subject to a sentence of up to three years in jail.
In any case, crucial concerns remain unanswered, such as whether the investigation is concentrating on “the act of retaining all this material at Mar-a-Lago” or on what the material actually is, according to Vladeck.
He remarked, “We won’t know for sure until we know for sure,” in light of the enigma.