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Opinion | Why the Trump Papers Case Is Really Like a Drug Trial

Not all crimes are so complicated. As a junior prosecutor, I spent years investigating large-scale narcotics trafficking. In a narcotics case, if you possess heroin or cocaine, you are guilty. You can argue that you didn’t really know they were narcotics, maybe you thought it was powdered sugar, but that’s rarely a viable defense. If the government can prove that you were the guy in the drug business, it’s over.

Most of the statutes at issue in the Mar-a-Lago document case are more similar to a narcotics case than a complicated bank fraud or obstruction of justice case. Top secret classified documents are a lot like narcotics from a criminal law perspective. You really don’t want to own them if you’re not authorized to do so. If you take top secret classified documents from a government facility and keep them in your home, you are guilty.

According to the newly released redacted affidavit for the August 8 FBI search warrant, in the 15 boxes removed from Mar-a-Lago in February, 184 documents had markings indicating various levels of classification, 25 of them marked top secret Some of these documents, according to the affidavit, referred to human intelligence sources. The presence of so many sensitive documents in the first batch of boxes strongly suggests that the numerous boxes of documents that FBI agents later seized also include highly sensitive documents.

I am convinced that if the defendant’s name were John Doe and not Donald John Trump, he would be charged in this case. Trump is obviously not a typical defendant. But his potential defenses are limited. He can argue, as he has, that the FBI planted the documents. That will work just as well as it does when the defendants claim the DEA planted drugs in his home. (Normally it doesn’t). You can also argue that he declassified the documents through an unwritten “standing order” when he was president, but as the DOJ recently pointed out, the statutes in question do not require the documents to be classified if they are closely guarded national defense material.

Trump’s only viable defense is to point the finger at someone else: claiming he is a hands-off administrator who took his aides at their word that none of the documents at Mar-a-Lago were in government hands. But while two of the statutes in question require the government to show that the defendant intended to break the law, the Justice Department’s repeated requests and demands of Trump, including a grand jury subpoena, will make it difficult for him to argue that he did not. bill. that the records contained national security secrets belonging to the federal government.

Trump’s defense would have to be that he did not read any of the government communications and that his lawyers told him that his meeting and communications with the Justice Department indicated he was clean. He would have to claim that the attorneys lied to him and that he never ordered one of the attorneys, Christina Bobb, to sign an apparently false statement to the Justice Department that all materials “marked classified” had been returned to the government.

It is not uncommon for criminal defendants to point fingers at professionals such as lawyers and accountants. In my experience, attorneys distance themselves from the defendant and protect themselves whenever a defendant points a finger at them. I personally interviewed the attorneys, along with an FBI agent, and they dropped the defendant like a hot potato. That has been my experience in private practice as well. I usually advise clients that their lawyers and accountants will throw them under the bus.

Trump has inspired the loyalty of millions of Americans. But it remains to be seen whether the lawyers are willing to sacrifice his career, and his freedom, to take the blame for him. If they don’t, Trump must expect Attorney General Merrick Garland to exercise restraint. For example, when General David Petraeus removed classified information and lied to the FBI about it, he was offered the opportunity to plead guilty to a misdemeanor. (Ironically, Trump signed into law a bill that made that very statute a felony, and it’s unclear if there is a misdemeanor that applies to his conduct.)

Many of Trump’s supporters, like former White House chief of staff Mick Mulvaney, have taken on the task of minimizing the seriousness of the case, alleging that “if it is only about documents, it is almost absurd.” If there is no other alleged criminal activity, supporters argue, then the FBI’s search was an unjustifiable “overreach.” That’s like arguing that a narcotics case is all about the drugs. In this case, it’s really just about the documents. Trump had something he shouldn’t have. And that is a potential crime.

It appears that the Justice Department has the goods on Trump. Typically, a criminal defense attorney would be trying to reach a settlement in this situation. That may be the best move left for Trump, even if he isn’t willing to go that route.

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