The relevant statute here is 18 U.S. Code § 1924 – Unauthorized removal and retention of classified documents or material:
(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both.
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(c) In this section, the term “classified information of the United States” means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.
The elements of the crime are:
- In possession of government documents containing classified information. √
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Knowingly removed such documents without authority. √
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Removed such documents with the intent (mens rea) to retain such documents (“They’re mine!“). √
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At an unauthorized location. √
The criminal grand jury sitting on Donald Trump’s unauthorized removal and retention of classified documents has no choice but to indict this criminal as a grave national security risk.
But wait! It gets worse. There may be several other relevant statutes Donald Trump has violated, including the Espioange Act (cited in the search warrant) for intending to disclose government secrets contained in those classified documents.
Ryan Goodman reports, Why Was a Trump Aide Promising to Release Classified Documents Before the Mar-a-Lago Raid?
As this article was going to press [Aug. 18], ABC News published a report that weeks before the Mar-a-Lago search, former President Donald Trump’s associate Kash Patel “vowed to retrieve classified documents from the National Archives and publish them on his website.”
My Spidey senses were correct! I knew this piece of shit insurrectionist was somehow involved in this, and I suspect that Michael Flynn and Steve Bannon are lurking somewhere in the shadows. They are all traitors to their country.
If that scheme involved Trump himself and the Mar-a-Lago documents, it could have significant legal implications for the Justice Department’s ongoing criminal investigation. Any plan to release the documents could potentially trigger specific elements of the Espionage Act and other criminal statutes designed with the core purpose of preventing unlawful dissemination of classified and other sensitive government documents. As I discuss below, credible evidence of such a plan also would likely factor into the Justice Department’s decision on whether to bring criminal charges.
The ABC News report is based on an interview Patel gave in June. However, Just Security has collected six other interviews and statements in which Patel discussed and elaborated on this plan.
The June interview may be among the most innocuous. It suggested Patel would go to the National Archives to obtain the documents. Likewise, in another interview on July 4, Patel suggested his plan was to pressure the Archives to release materials in their possession. Less innocuous and far more incriminating, however, are other interviews in which Patel more explicitly discussed an effort to release documents housed at Mar-a-Lago.
Patel is no ordinary aide to Trump. [He was an aide to Rep. Devin Nunes and worked to discredit the Russia investigation.] During the Trump administration, he served as Deputy Assistant to the president, a job he reportedly “landed after Fox News host Sean Hannity took him to meet Trump in the Oval.” After the November 2020 elections, Patel was dispatched to the Defense Department as chief of staff to the acting defense secretary where, among other activities, he reportedly pursued the idea that Italian military satellites had been used to turn votes to Joe Biden in the presidential election, according to Jonathan Karl’s book and the House Select Committee hearings.
Kash Patel also has written a book, an insane children’s book entitled “The Plot Against The King,” (yes, King Donald) in which he perpetuates the false claim that the Steele dossier sparked investigations into Russian collusion. These people are so insane that you literally cannot make up this kind of crazy shit.
Since leaving office, Patel has joined the board of directors for the former president’s media company, Trump Media & Technology Group. On June 19, 2022, Trump sent a letter to the National Archives designating Patel as one of the former president’s “representatives for access to Presidential records of my administration.” Patel claims to have been in the room when then-President Trump verbally declassified documents. He has often made other statements in right-wing interviews that anticipate and put forward Trump’s specific claims of innocence about the Mar-a-Lago documents.
Note: Democratic Rep. Adam Schiff, Chair of the House Intelligence Committee, said Sunday that he has not seen evidence that former President Donald Trump declassified documents that were found by the FBI during a search of his South Florida residence, Mar-a-Lago. Schiff says he’s seen “no evidence” that Trump declassified documents found at Mar-a-Lago: “”We should determine whether there was any effort during the presidency to go through the process of declassification,” Schiff said in an interview on “Face the Nation.” “I’ve seen no evidence of that, nor have they presented any evidence of that.”
This piece of shit Patel is the one who is promoting the bullshit theories that Trump “verbally declassied the documents” – “I was there!” – or issued a standing order that any documents that went with him to his home in exile at Mar-a-Lago were autonatically declassified. Intelligence officials scoff at this utter nonsense. There is no such declassification process.
The Dissemination Plan
When news of the Mar-a-Lago documents began heating up in May 2022, Patel spoke with right-wing media outlets about Trump’s objectives in retaining these documents. He began laying out the defense that the documents had been “declassified,” and specifically identified Trump’s goal to release the information publicly. He described the content of the documents to include matters related to the Russia investigation (Crossfire Hurricane), but also a much broader range of issues.
So this is about a “revenge tour” against the investigators on the Russia investigation? Sounds to me more like both of these guys are active agents for the Russians working to undermine the U.S. Intelligence agencies.
“It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance—anything the president felt the American people had a right to know is in there and more,” Patel told Bretbart on May 5. He also said, “Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves.”
That same day, Patel spoke with a right-wing video show and discussed Trump’s goal of “transparency” in releasing such information. He said:
Part of that transparency comes in the form of, you know, providing the American public with information that should never have been classified or kept from them in the first place. And what he did was on his way out of the White House, he declassified—made available to every American citizen in the world—large volumes of information relating, not just to Russiagate, but to national security matters, to the Ukraine impeachment, to his impeachment one, impeachment two.
All things that deep-staters, as you know, Buck, in government go in there and get their hands on and classify ’cause they don’t want the truth to get out ’cause it’s gonna make Trump look good ’cause he always supported the truth and the facts. And that’s what we have here is a whole slew of documents and information that President Trump wanted to put out.
“We’re hoping to get this information out soon,” he added.
In the June 21, 2022 interview covered by ABC News, Patel spoke about using his official status as Trump’s representative to the National Archives to obtain and release the documents. He said, “Now that I am now officially a representative for Donald Trump at the National Archives, I’m going to march down there—I’ve never told anyone this, because it just happened, and I’m going to identify every single document that they blocked from being declassified at the National Archives and we are going to start putting that information out next week.” It is notable that Patel promised to start putting out the information, even though his interviews were replete with references to the National Archives opposing such a move.
In a July 4 interview for another far-right media show, Patel referred to pressing the National Archives for documents on the Russia investigation to “be released because they are already declassified.” Referring to the Russia investigation, he said “the American public has only seen 60 percent of what we’ve been able to see;” “Why won’t they release the other 40 percent? … So I am going to continue that work at the National Archives, I apologize I can’t get it declassified overnight, but I’m on it.” At varying points in the interview, Patel appeared to maintain the line that the information was already declassified and at other times admit it was not.
Legal Significance
In a summary of the Espionage Act published earlier this week, the New York Times wrote, “It is not clear why Mr. Trump had classified documents at Mar-a-Lago. There is no evidence yet that he was planning to release the material.” If there were such evidence, it could have significant legal consequences.
Several federal criminal statutes make it illegal to remove, retain, or exercise gross negligence in storing government documents. However, the more serious crimes include deliberately planning to transmit classified or other highly sensitive materials to the public. The Espionage Act, for example, makes it a crime for anyone who “attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted” closely held national defense information “to any person not entitled to receive it.” A prison sentence of up to 10 years can be imposed for violations of the statute.
Professor of law at the University of Michigan and former U.S. Attorney, Barbara McQuade, told Just Security, “Disclosing classified information is a crime for good reason. Classified information is defined as information, the disclosure of which will cause damage to the national security of the United States. Disclosing classified information to refute links to Russia puts Trump’s personal and political interests before our country.”
The Congressional Research Service has noted that “no individual has ever been acquitted based on a finding that the public interest in the released information was so great that it justified an otherwise unlawful disclosure.”
If evidence emerges of a plan to release the Mar-a-Lago materials, it could also shape the Justice Department’s decision on whether to bring charges.
“Factors that traditionally weigh in favor of the discretionary decision whether to bring a criminal charge would include the nature of the government information stolen—for instance, is it vital national security intelligence—and what the person intended to do with it. Although DOJ need not wait until such information is disseminated to a third party, if that was intended or in fact occurred that would weigh in favor of bringing a charge,” Andrew Weissmann, a professor at NYU School of Law and a former General Counsel of the FBI with experience working on these national security investigations, said in an email to Just Security.
Which brings me the redacted afidavit in support of the search warrant released today (an unheard of event for an DOJ national security criminal investigation). NBC News reports, FBI found 184 classified documents in boxes returned by Trump, redacted affidavit says, prompting search:
A redacted copy of the FBI affidavit used to justify the Aug. 8 search of former President Donald Trump’s Mar-a-Lago estate was unsealed Friday, revealing details of the federal government’s efforts to recover classified documents, including top-secret information.
The 36-page affidavit, much of which was heavily redacted, said that in mid-May, FBI agents conducted a preliminary review of the contents of 15 boxes Trump returned to the National Archives from his Florida property in January, and “identified documents with classification markings in fourteen of the FIFTEEN BOXES.”
The affidavit said that agents found 184 unique documents that had classification markings. It stated that 25 documents were marked as “TOP SECRET,” 67 documents marked as “confidential” and 92 marked “secret.” According to the affidavit, agents observed markings denoting various control systems designed to protect various types of sensitive information, including markings that designate intelligence gathered by “clandestine human sources,” such as a report by a CIA officer or someone who works for the Defense Intelligence Agency.
The release of the FBI affidavit came after U.S. Magistrate Judge Bruce Reinhart ruled Thursday that the document could be unsealedafter the Department of Justice submitted proposed redactions.
Reinhart approved the warrant that allowed federal agents to search Trump’s Florida property Aug. 8 after determining that the affidavit provided probable cause. He reiterated earlier this week that he found “probable cause that evidence of multiple federal crimes would be found” at Mar-a-Lago and that he “was — and am — satisfied that the facts sworn by the affiant are reliable.”
The affidavit contains substantial redactions in its section on providing probable cause for the August search, which is about 20 pages. One almost completely blacked-out section is titled, “There is Probable Cause to Believe That Documents Containing Classified [National Defense Information] and Presidential Records Remain at the Premises.”
Ultimately, FBI agents removed 11 additional sets of classified documents, including some labeled secret and top secret, during the Aug. 8 search, according to the property receipt of items that were recovered. There were also papers described as “SCI” documents, which stands for highly classified “sensitive compartmented information.” [This kind of classified information has a strict chain of custody protocol and is never to leave a SCIF.]
[T]he affidavit noted that based on the federal investigation, the government believed that the storage room where boxes of presidential records were kept at Mar-a-Lago, as well as Trump’s suite, his office and other spaces “within the premises are not currently authorized locations for the storage of classified information.”
In June, Justice Department lawyers sent Trump’s attorneys a letter that reiterated that Mar-a-Lago couldn’t be used to store classified information, according to the affidavit. The Justice Department asked in the letter that the room where the documents were stored “be secured and that all of the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice.”
The government concluded in the affidavit that “probable cause exists to believe that evidence, contraband, fruits of crime, or other items illegally possessed in violation” of U.S. law will be found on the grounds of the property.
Attached to the affidavit is a May 25 letter from Trump lawyer Evan Corcoran to Jay Bratt, chief of the Counterintelligence and Export Control Section in the Justice Department’s National Security Division.
Corcoran characterized the interactions with the National Archives as “friendly, open, and straightforward,” and called the transfer of presidential records — as required by the law — as “voluntary and open.”
He tried to argue that presidential actions involving classified documents are not subject to criminal sanctions, because Trump was not “an officer, employee, contractor, or consultant of the United States.”
This guy is a truly incompetent lawyer. The documents were removed while Trump was still president.
In a separate 13-page filing Friday, the Justice Department reiterated its case for redacting parts of the affidavit, including “to protect the safety and privacy of a significant number of civilian witnesses in addition to law enforcement.”
“If witnesses’ identities are exposed, they could be subjected to harms including retaliation, intimidation, or harassment, and even threats to their physical safety,” the government wrote, noting recent threats to law enforcement following the Mar-a-Lago search.
The Justice Department also argued that revealing certain information could “severely disadvantage the government as it seeks further information from witnesses.” And it said the government has “well-founded concerns that steps may be taken to frustrate or otherwise interfere with this investigation if facts in the affidavit were prematurely disclosed.” [Obstruction of justice, Donald Trump’s crime of choice.]
Reinhart, in his order Thursday, said that the Justice Department had shown sufficient cause to redact portions of the affidavit, agreeing that releasing the document in whole would reveal the identities of witnesses, law enforcement and “uncharged parties,” as well as the scope and methods of the investigation. The Justice Department had also shown that its redactions were “narrowly tailored,” he wrote.
The Presidential Records Act mandates that all presidential records be properly preserved by each administration so that a complete set is transferred to the National Archives at the end of an administration.
Trump also received a federal grand jury subpoena in the spring for sensitive documents the government believed he retained after his departure from the White House, NBC News previously reported. A source who spoke on the condition of anonymity said the subpoena was related to documents that Trump’s legal team discussed with Justice Department officials at a meeting in early June.
How can we be certain that Donald Trump and his criminal associates have not already provided copies of these highly classified documents to his Russian handler Vladimir Putin, or to his loverboy in North Korea, or to his sword dance buddies in Saudi Arabia, for example? He has had these documents since before he left the White House, over 19 months.
I can picture Donald Trump sitting at his desk in his underwear late at night burning up an old fax machine faxing documents to the Kremlin, because he does not know how to scan documents and send them as attachments to an emails (he reportedly does not email). Hell, he may even have just taken pictures of the documents and sent them as text attachments to the Kremlin.
Has the FBI moved to seize his phones and computers and telephone carrrier records? Have they checked with the nearest FedEx location to see if Trump was simply mailing documents to the Kremlin?
Every one of these motherfuckers around Donald Trump, and the third-rate crime boss himself, need to go to prison for a long time.
What is the grand jury and the DOJ waiting for? They have everything they need to indict right now. They seem to be trying to track down every lead to tie up any loose ends. The DOJ can still do this after an indictment. That’s what superceding indictments are for.