In 2016, Hillary Clinton was the presidential candidate under investigation, and James Comey, the director of the FBI at the time, outlined the considerations the Justice Department takes when determining whether to file charges against someone for improper handling of sensitive material.
When we fast-forward to 2022, the teaching still holds true because Donald Trump, another contender from that race, is now embroiled in an FBI investigation involving secret government papers.
The unknown is if a search of Trump’s Mar-a-Lago home by the FBI served as a preliminary to criminal charges. Although the department’s own history of prosecutorial discretion — some high-profile investigations have ended in misdemeanour plea deals or without charges — makes it difficult to predict with certainty what might happen this time, the action on Monday nonetheless draws attention to the complex of laws that regulate the handling of government records.
According to Stephen Vladeck, a law professor at the University of Texas, “These are statutes that have historically not been implemented to the utmost degree.”
There are still many questions surrounding Monday’s search, including the particular documents the FBI was seeking (Trump claims investigators unlocked a safe) and the reasoning behind its actions.
But others familiar with the situation say it relates to a Justice Department inquiry into the discovery of classified information in boxes of White House records that the National Archives and Records Administration acquired from Mar-A-Lago earlier this year.
Although it is unclear what statute officials believe may have been broken, the Justice Department would have had to convince a court that there was probable cause that a crime had been committed to get a search warrant.
The preservation of government secrets is mandated by numerous federal statutes. One law that might be important makes it unlawful to remove classified material and keep it in an unauthorized location.
Another makes it unlawful to improperly handle material related to national defence, including documents, maps, and photos, or to transfer it to someone who is not supposed to have access to it.
But if history is any guide, simply handling classified information improperly may not always result in a criminal conviction or even any charges at all.
David Laufman, a Washington attorney who oversaw the Hillary Clinton investigation as chief of the Justice Department’s counterintelligence and export control branch, stated that “it often boils down to whether there are aggravating factors in these cases.”
He listed some of them, including how much sensitive information was handled improperly, the degree to which the individual knew they had it, how sensitive the information was, and whether or not its exposure put U.S. national security in danger.
When it concluded an investigation into whether Clinton misused classified information using a private email server while secretary of state in 2016, the FBI made that statement.
Agents found that she sent and received emails containing sensitive material, but Comey claimed there was no evidence that she meant to breach the law. He claimed that no rational prosecutor would have filed such a case.
He cited a review of prior Justice Department prosecutions to back up his claim, claiming that each prosecution involved some combination of the following: willful misconduct, disloyalty to the U.S., or obstruction of justice; extensive material exposure; and intentional mishandling of classified records.
Another noteworthy case involved former CIA Director David Petraeus, who was allowed to enter a guilty plea to a misdemeanour charge of the unauthorized removal and retention of classified information in 2015.
As a result, he was spared prison time because he admitted to sharing notebooks containing state secrets with his biographer.
Despite Petraeus’ admission that he understood the material he was sending was secret, that resolution was made two years after an FBI search of his residence.
What defences Trump might make as the probe develops are still unknown. He complained that the FBI’s action was a “weaponization of the Justice System and an attack by Radical Left Democrats” rather than discussing the specifics of the investigation in his long statement announcing the search.
In an interview that aired on Real America’s Voice on Tuesday, Trump’s attorney Christina Bobb claimed that she had not seen the warrant’s supporting material and that it was still sealed.
She did, however, add that the investigators claimed to be “searching for sensitive information that they believe shouldn’t have been removed from the White House, as well as presidential documents.”
She claimed that the president has the authority to determine what counts as a presidential record, and it is true that Trump could argue that, while serving as president from January 20, 2021, he was the original classification authority and had personally declassified the classified documents found at Mar-a-Lago.
But according to law professor Vladeck, it would be a “pretty stunning” defence for Trump to assert that he had “declassified all of our crown jewels” and thereby essentially acknowledge that he posed a “threat to our national security.”
The fact that he has legal authority, according to Laufman, “doesn’t mean…that anything he might have chosen to take from the White House and squirrel away at Mar-a-Lago is declassified. In Donald Trump’s mind, there is no such thing as a declassification process. It doesn’t carry out itself.
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He might also claim that he was not aware of the contents of the boxes when they were being packed. Boxes were among the items that were moved out of the White House on Inauguration Day, according to his son Eric, who spoke to Fox News.
However, Laufman said that even if that were the case, he would still have been required by law to return the classified information as soon as he was made aware of its presence.
Other laws that don’t specifically deal with classified information could also come into play. According to one law, it is a crime for someone to knowingly mutilate, obliterate, or destroy government records while they are in their possession.
The Constitution establishes the requirements for who can run for president, but this law stipulates that anyone convicted of it is barred from holding future office and is subject to a sentence of up to three years in prison.
In any case, important questions remain unanswered, including whether the focus of the investigation is on “the act of keeping all this material at Mar-a-Lago” or on what the material in question is, according to Vladeck.
We won’t know for sure until we know for sure, he said, referring to the mystery.
