Wednesday, October 5, 2022
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Trump Documents Investigation Poses Unprecedented Test for Justice Department

WASHINGTON — As Justice Department officials argued for months this year with attorneys and aides to former President Donald J. Trump about the return of government documents to his Florida home, federal prosecutors became convinced they were not being told the full story. TRUE.

That conclusion helped set in motion a decision that would amount to an unprecedented test of the Justice Department’s credibility in a deeply polarized political environment: request a search warrant to enter Mar-a-Lago and retrieve what prosecutors suspected. which would be highly classified materials. beyond the hundreds of pages that Mr. Trump had already returned.

According to the government’s account, that gamble paid off, as FBI agents made off with boxes full of sensitive material during the search three weeks ago, including some top-secret-marked documents.

But the matter hardly ended there: What began as an effort to recover national security documents has now morphed into one of the most challenging, complicated and potentially explosive criminal investigations in recent memory, with tremendous implications for the Department of Justice, Trump said. and public faith in government.

Attorney General Merrick B. Garland now faces the possibility of having to decide whether to bring criminal charges against a former president and likely 2024 Republican candidate, a step without historical parallel.

Surprisingly, he may have to make this decision twice, based on evidence his investigators find in their extensive separate investigation into Trump’s efforts to reverse the outcome of the 2020 election and his role in the Jan. 6 attack. against the Capitol.

The department’s Jan. 6 investigation began as a manhunt for rioters who attacked the Capitol. But last fall it was expanded to include actions that occurred before the attack, such as the plan to submit voter lists to Congress that falsely claimed Trump had won in several key battleground states.

This summer, prosecutors from the US attorney’s office in Washington began asking witnesses directly about any involvement by Trump and members of his inner circle, including former White House chief of staff Mark Meadows, in efforts to reverse his electoral defeat.

Despite all his efforts to distance the department from politics, Mr. Garland cannot escape the political repercussions of his decisions. How he handles Trump will surely define his tenure.

It is not yet clear how either case will play out. Prosecutors working on the investigation into Trump’s handling of classified information are no closer to making a recommendation to Garland, according to people with knowledge of the investigation. Court records describe work continuing, with the possibility of more witness interviews and other investigative steps to come.

So far, Garland has signaled that he is comfortable owning all decisions related to Trump. He has resisted calls to appoint a special prosecutor to handle investigations into the former president. In his first speech to the department’s 115,000 employees last year, he expressed faith that together they could handle any case. “All of us are united by our commitment to the rule of law and to seeking equal justice under the law,” she said.

Over the course of this year, as prosecutors sought to understand how sensitive government documents ended up at Trump’s Florida resort, they began examining whether three laws had been violated: The Espionage Act, which prohibits the unauthorized retention or disclosure of national security information. information; a law prohibiting the mishandling of sensitive government records; and a law against obstruction of a federal investigation.

By the summer, the investigation into Trump’s handling of classified information had begun to turn up convincing hints of a possible intent to thwart the law, according to two people familiar with the work. While there was not necessarily incontrovertible evidence, witness interviews and other materials began to point to the possibility of deliberate attempts to mislead investigators. In addition to witness interviews, the Justice Department obtained security camera footage of various parts of Mar-a-Lago from the Trump Organization.



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The heavily redacted affidavit explaining the government’s desire for a search warrant said that the Justice Department had “probable cause to believe that evidence of obstruction will be found at” Mar-a-Lago, and that “the government has well-founded concerns that steps may be taken to thwart or interfere with this investigation if the facts in the affidavit were revealed prematurely.”

But a decision about whether to charge Trump for attempts to obstruct the investigation, or his handling of sensitive national security information, would involve a variety of considerations.

At the heart of the case would be the evidence uncovered by the FBI, which is still trying to understand how and why government records made it to Mar-a-Lago and why some stayed there despite repeated requests for their return. the National Archives and a subsequent subpoena from the Department of Justice.

But the highly classified nature of some of the documents recovered from Mar-a-Lago and possible evidence of obstruction are just a few elements that will be taken into account in any final decision on prosecution.

Career national security prosecutors will conduct a robust analysis of whether that evidence persuasively shows laws were violated. That process will include a look at how the facts have been applied in similar cases brought under those same laws, information prosecutors examined when they investigated former Secretary of State Hillary Clinton and former CIA Director David H. Petraeus.

In the case involving Mrs. Clinton’s use of a private email server, for example, officials from the National Security Division asked prosecutors to delve into the history of the Espionage Act. The question was whether her handling of classified information indicated that she had been grossly negligent. A compelling case of gross negligence they found, involving a former FBI agent, included much more serious factors. After examining previous examples, they found that her case did not meet that standard. In the end, the consensus was not to charge Mrs. Clinton.

But Trump’s case raises the additional issue of obstruction of justice and the possibility that evidence may show that he or his legal team defied the Justice Department to withhold documents belonging to the government.

That somewhat echoes an earlier obstruction investigation by Robert S. Mueller III, the special counsel who examined whether Russia interfered in the 2016 election. His final report showed that Trump sought to reduce, or even end, the special counsel’s investigation as he learned more about it. But Mueller declined to say whether Trump had broken the law, allowing then-Attorney General William P. Barr to acquit Trump of that crime.

There is no way of knowing if the DOJ has facts related to obstruction that meet their requirements. standard of prosecutionwhich is evidence that “would probably be sufficient to obtain and sustain a conviction.”

But the Justice Department’s own legal filings have brought the issue of obstruction into the public eye. If Mr. Garland finds that there is insufficient evidence to charge Mr. Trump, the Justice Department in two successive administrations will have chosen not to recommend prosecuting Mr. Trump for that crime.

If Mr. Garland decides to go forward with the charges, it will be a historic moment for the presidency, a former leader of the United States accused of committing a crime and possibly forced to defend himself before a jury of his fellow citizens. It’s a process that could potentially play out even as he runs again for the White House against an incumbent whose administration is processing him.

That, too, runs great risks to the department’s credibility, particularly if the national security threat presented by Trump’s possession of the documents, inevitably revealed at least in part during the course of any trial, does not appear substantial enough to to justify such a decision. serious movement.

Mr. Garland and his investigators are fully aware of the implications of their decisions, according to people familiar with their work. The knowledge that they will be scrutinized for wrongdoing and overreach, they say, has underscored the need to stick to the facts.

But the decision to prosecute—or refuse to prosecute—has political implications that Garland cannot escape. And any question of sanity can change the fact that she is operating in a politically divided America like she has been in decades.

Trump supporters have viewed any investigative steps into the former president as unlawful attacks by a partisan Justice Department out to get him. And his critics believe that any decision not to prosecute, regardless of the evidence, would show that Trump is above the law.

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