The Smart Move

If Donald Trump was anyone other than Donald Trump, he would have pled guilty by now to the charges that are inevitably coming from the Mar-a-Lago search. Of course, if he was smart, he would have comprehensively searched and returned everything in his possession the minute the National Archives came knocking. So, this isn’t about whether he’s smart. It’s about whether he has a survival instinct and some common sense at this point.

He does not. If he did, the only smart move, after his failed efforts at deceiving federal prosecutors and his attempt to obstruct the investigation came to light, would’ve been a guilty plea. That’s the only thing that could limit his exposure on charges, some of which carry a statutory maximum penalty of twenty years in prison.

Justice Department decisions about charging cases are grounded in internal precedent from similar cases. That makes sense—as a prosecutor, you want to do your best to treat like cases alike. So prosecutors, after determining that they have sufficient evidence to obtain and sustain a conviction—that’s the “could you” question—are charged with considering whether they should indict. And one of the “should” considerations involves how DOJ has handled similar cases in the past.

That’s why it was predictable that prosecutors would give Mike Pence a pass for his possession of classified documents. His team voluntarily searched and returned everything without a request from NARA. His possession appeared to be inadvertent, and he took no steps to conceal it or retain documents; rather, he advised NARA he had them and invited them to come take possession. DOJ doesn’t charge cases like that—indicting defendants isn’t meant to be a gotcha game; it’s a serious matter of doing justice on behalf of the American people.

As opposed to Pence’s conduct, disseminating classified documents or national defense information would present the most serious type of situation here. Based on what is publicly known, there isn’t sufficient evidence to charge Trump with dissemination, at least not yet. The special counsel’s office doubtless has more definitive information in this regard than the public does.

But Trump’s case is not the same as Pence’s. Even if all the government can establish is retention, there are aggravating factors here that make Trump’s situation akin to others where DOJ has charged retention cases. And because DOJ operates on the principle of treating like cases the same, that strongly suggests we will see an indictment here, perhaps involving more people than just Trump himself.

Some of the important factors that highlight the seriousness of Trump’s conduct include the following:

1. Trump kept lots of government records, including classified material, and some of it was designated top secret, which means that its disclosure could “reasonably be expected to cause exceptionally grave damage to the national security.” He also retained compartmented top secret materials, which have even more heavily restricted access and must be viewed and stored only in authorized and highly secured designated areas.

2. Trump kept the documents for a long period of time, at least 18 months, although there is some suggestion that federal prosecutors are not confident everything has been returned even now. Trump kept the documents despite polite requests for their return, a visit from DOJ officials, and a subpoena (at least one), forcing DOJ to obtain a search warrant in order to seize the documents. Trump has repeatedly referred to the government’s property as his, said he was entitled to have it, and reportedly floated with his aides the idea of trading it to the Archives for material he wanted about his great white whale—the deep state conspiracy he insists led to the Russia investigation, despite a contrary finding by the DOJ inspector general and no evidence to support it from the Durham investigation, which concluded its work with little fanfare and a pair of acquittals in the only two cases it took to trial.

There are, quite obviously, no other cases involving former presidents. Trump is the first. The high office he held and his abuse of the public’s trust to use that office to access and retain the documents are important. All the other prosecuted cases involve people with lesser governmental authority, many of them quite low level. To prosecute them but allow Trump to walk away would be an injustice.

One case that is helpful in understanding why Trump’s conduct merits prosecution given DOJ’s prior practice is United States v. Kenneth Wayne Ford. In 2008, the Fourth Circuit Court of Appeals affirmed Ford’s convictions for retaining national defense information in violation of the espionage act and making false statements to the government. Ford was an NSA computer specialist for two years, with a top security clearance. The FBI obtained a search warrant for his home and found sensitive and classified information in places including his kitchen and his bedroom. He acknowledged taking the documents home on his last day of employment, claiming he thought the materials would help him in his new job with a defense contractor. Then-Maryland U.S. Attorney Rod Rosenstein (who would later become Trump’s deputy attorney general) said, “Government employees who betray the public trust and endanger national security must be held accountable,” at the time of Ford’s sentencing to 72 months in custody.

The case is instructive because it involves retention of government materials but no charge of dissemination. DOJ charged Ford despite obtaining the return of its materials by executing a search warrant. Moreover, Ford also made a false statement, lying about the nature of his arrest in the course of applying for a position with a government defense contractor, and failing to disclose he had issues that needed to be assessed if he was going to be assigned to handle classified material. Ford’s conduct, while extremely serious, does not rise to the level of Trump’s for multiple reasons—his position, the lack of protracted concealment or overt obstruction. Rod Rosenstein’s comment about holding public employees accountable applies with full force to Trump. Ford is but one among many cases that make clear that DOJ precedent requires that Trump be prosecuted.

Much as the agency’s discretion in deciding which cases to charge is informed by its prior treatment of similar cases, DOJ also looks to prior cases when it comes to proposing sentences. The decision about the length of a sentence is up to the court following a trial, as in the Ford case. But a guilty plea is an agreement between the government and the defendant, and there, the choice of sentence, which judges can but don’t often depart significantly from, is largely in DOJ’s hands. So examining cases where high-level government officials were involved is instructive.

In 2001, former CIA Director John Deutch entered into a plea agreement with the government pursuant to an information. Although most cases are indicted before a grand jury, when a defendant has reached an agreement with the government before he is charged and is willing to waive the grand jury process, the government typically charges that defendant via a document called an information that bears the relevant U.S. Attorney’s signature. After Deutch left the CIA, agents discovered he had been using his home computers, which were not configured to handle sensitive material, to store highly classified information. Deutch pled guilty to a misdemeanor and was charged with unauthorized removal and retention of 96 classified documents. In exchange for his plea, the government recommended that Deutch serve no time in prison.

In 2012, another CIA director, David Petraeus resigned and pled guilty to retaining classified documents at his residence and permitting a woman he was having an affair with to use them in connection with research she was conducting to write his biography. Petraeus lied to the FBI when they questioned him about it. The information she accessed included identities of covert officers, war strategy, intelligence capabilities, and more. He was permitted to plead guilty, like Deutch, to one count of retaining materials and was sentenced to probation.

Those sentences sound outrageous at first glance, particularly in comparison with Ford’s. Certainly, they didn’t make anyone at DOJ happy. But they recognize the practical reality that going to trial to obtain a custodial sentence in either case would have required the disclosure of highly sensitive, classified material in order to have the necessary evidence available to convict. The government wasn’t willing to tolerate the damage that would’ve done to national security. A former senior Justice Department official called the outcome of Petraeus’s case the “cleanest” possible outcome for both sides.

Former Attorney General Eric Holder declined to comment at the time he approve Petraeus’s plea deal. After leaving office, he was asked if it was unfair to let Petraeus plead to a misdemeanor while people in lower-ranking jobs were vigorously prosecuted for similar crimes. Holder responded: “There were factors that made the resolution of the case appropriate. There were some unique things that existed in that case that would have made the prosecution at the felony level and a conviction at the felony level very, very, very problematic.” It’s difficult to protect a former high-ranking official—and the national secrets they have knowledge of—inside a prison. The risk is great.

This prior precedent is why, Trump, if he were smart, would have already gotten himself in front of a judge to say the word “guilty.” It would likely have been to a misdemeanor. And Trump, being Trump, would have likely called a misdemeanor conviction with no sentence a witch hunt and used it to raise money. The course he is currently on is one that makes a felony indictment, a trial, and a sentence that involves some type of custody the likely outcome.

Some defendants don’t take anything seriously until they see an indictment in front of them. That piece of paper can change things. But Trump, already under indictment in Manhattan, may not view a second indictment any more soberly than he seems to have the first one. He’s built a career on outsmarting the system, at least in his own mind.

Trump would do well, nonetheless, to take to heart the Fourth Circuit’s words when they affirmed conviction, writing that his “actions exposed classified information to discovery by a person without a security clearance and created a potential for serious harm to our nation’s security.” That’s the standard, and Trump is in serious trouble, as he should be.

Admittedly juries are fraught—anything can happen with the dual requirements of proof beyond a reasonable doubt and a unanimous jury verdict. Still, the smart move, or at least the best one for someone in Trump’s position with any survival instincts, would be to try to strike a misdemeanor plea deal. His attorneys, some of whom spent time at DOJ, undoubtedly know this and have advised him accordingly. But Trump hasn’t done that, at least not so far, and no one seems to really expect it.

We’re in this together,

Joyce