Cryptosmith

Update: Former President Trump has been indicted under federal laws for unlawfully retaining government documents and under the Espionage Act.

I’ve avoided commenting on the FBI’s discovery of classified documents at the Mar-a-Lago Club, the home of former President Donald Trump, before this. Numerous pundits have shared their opinions about Trump’s legal jeopardy, if any. I’ve been waiting for things to clarify. I’m now almost convinced that Trump is toast, legally.

My earlier posts about sloppy handling of classified materials by officials at the Cabinet level or higher argue that they have broad authority in handling classified materials. Actions that land lower-level officials in jail seem like they’re overlooked or even excused in people who are classification authorities. That’s no accident. These authorities have broad powers to decide what is – and is not – classified. While it isn’t a ‘get out of jail free’ card, it gives a prosecutor many reasons not to charge such an official. If Trump had not been President or a cabinet officer, he’d probably be in jail already.

It’s worthwhile to note that most people convicted of espionage or other crimes tied to mishandling classified information plead guilty instead of going for a jury trial.

The FBI’s photo of a few seized documents (above) is the most interesting open-source photo I’ve ever seen of classified documents. I wish the FBI could have freeze-dried the display to put in their museum.

Model Prosecution Memo (“pro memo”)

Being the former Chief Executive as well as a former classification authority makes prosecution complicated, but not impossible. A team of former prosecutors recently constructed a “model prosecution memo” to outline a possible case against Trump. Here are the federal crimes charged:

• Retention of National Defense Information (18 U.S.C. § 793(e))
• Concealing Government Records (18 U.S.C. § 2071)
• Conversion of Government Property (18 U.S.C. § 641)
• Obstruction of Justice (18 U.S.C. § 1519)
• Criminal Contempt (18 U.S.C. § 402)
• False Statements to Federal Investigators (18 U.S.C. § 1001)

No one, not even the most experienced attorney, can predict the outcome of a criminal case like this. But this “pro memo” (their insider jargon term for the document) seems to cover all the bases. It is also a wonderful source for thoughts and reasoning on the legal subtleties of classified information. One section summarizes the public information on recent cases where people were convicted for mishandling classified information. Two were former CIA directors and classification authorities.

Although the pro memo indicates good reasons to indict Trump for the Mar-a-Lago document mishandling, it only relies on published information. The Justice Department might have additional undisclosed information that indicates Trump acted legally. If so, they are required to show these to Trump and his attorneys when preparing for court. Justice may also have as-yet undisclosed information indicating that other charges are warranted.

Criminal Espionage

The pro memo discussed above does not look at criminal espionage, the ultimate crime for mishandling classified information. To be guilty of espionage the prosecutor must prove (1) the defendant acted intentionally, (2) knew the documents were defense secrets, and (3) shared the contents with unauthorized people. The Espionage Act predates the government’s classification system, so the information doesn’t need to be classified; it only needs to be a defense secret. In practice, prosecutors often rely on security classifications to show that information is a defense secret.

CNN recently reported that the Justice Department’s special prosecutor Jack Smith (no relation) has an audio tape on which Trump checks all three boxes. The tape was of an unclassified meeting that took place in July, 2021, at Trump’s golf club in Bedminster, NJ. Before looking further, note that this report is based is third-hand leaks from people who claimed to hear some of the tape’s contents, or perhaps had seen part of a transcript. Update: After this post was published, the tape recording was released to the public.

The CNN report claims that Trump was meeting with two people workings on an autobiography of Mark Meadows (a former chief of staff for the President), his communications specialist, and other aides. None had security clearances (I’m not sure about Trump’s clearance status).

Trump apparently spent about two minutes talking about a secret plan to invade Iran. He described a “classified Pentagon” document that called for massive numbers of troops. Background noise on the tape suggests that Trump was handling a paper document while talking. It’s easy (but uncertain) to assume he’s brandishing the actual document as he described it.

Classified Documents as Trophies

Classified documents are exclusive and shrouded in mystery. Of course they seem like trophies. The lurid covers visible in the photos are supposed to hide the actual secrets from sight. Flashing the cover of a classified document instantly marks you as one of the “cool kids” and as a true insider. The covers are intended to hide all the secrets, so it’s technically OK to display the cover.

To the right is an enlarged cover sheet from the Mar-a-Lago document cache. If you look closely, all the cover sheets are identical, except that some say Secret and have a red border while others say Top Secret and have a yellow (orange/gold) border. If you look closely, they all carry fine print in parentheses atop the lower security marking. Having seen these sort of sheets before, I can reliably report that the parenthetical remark says “This cover sheet is unclassified.” In other words, no classified information is actually leaked by the cover itself. Although the sheet says the document “may include information up to HCS-P/SI/TK,” the cover sheet doesn’t disclose such information. Those abbreviations are unclassified. An ABC News report analyzes the information visible in the cache photo.

I learned early in my career that serious people in the defense and/or intelligence community get over the need to show off when it comes to classified information. It’s considered bad form to carry classified documents around so that people can see the cover sheets. But that’s a matter of custom that some might violate and survive. You never, ever violate the handling rules. For example, you don’t leave a document hidden in your desk when you go to the bathroom. You either keep it in your possession or you lock it up. You don’t take things home. You don’t make copies all by yourself.

I take pride in my writing. I’m especially proud of one or two classified reports I wrote, but I don’t get to flaunt them in my resumé or cite them in papers. I’ve tried to keep copies of all my work, except for the classified things. I don’t even get to re-read any of them because my clearance expired. I applied to declassify one of my classified papers a few years ago through the Freedom of Information Act (FOIA). It never happened, so I suspect the now-antique technology is still being used. Or, more likely, I’m just too far down the queue.