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Laws and listings in search warrant offer clues to Trump documents investigation


The warrant that authorized the FBI to search former President Donald J. Trump’s Florida residence on Monday listed three criminal statutes as the basis for its investigation, offering insight into an investigation into his possession of government documents.

The search warrant, which was unsealed and made public on Friday in response to a Justice Department request, showed the investigating judge who issued it concluded there were probable grounds to believe that the FBI would uncover evidence of all three crimes.

Mr Trump, who himself declined to release the documents but did not object to their release, said materials listed in an inventory of items seized from his home had all been declassified. The inventory included several caches of documents that the FBI classified as top secret along with other government files.

While it is true that Mr. Trump tried the declassified records before the end of his presidency, however, none of the three crimes depend on the documents being classified.

The first law, Section 793 of Title 18 of the United States Code, is better known as the Espionage Act. It criminalizes the unauthorized retention or disclosure of national defense information that could be used to harm the United States or aid a foreign adversary. Each offense is punishable by up to 10 years in prison.

Despite its name, the Espionage Act is not limited to instances of espionage on behalf of a foreign power and is drafted in a manner that broadly covers the mishandling of security-related secrets. The government has frequently used it to prosecute officials who leaked information to the media in an effort to raise an alert or otherwise inform the public, for example.

It’s important to note that Congress enacted the Espionage Act in 1917, during World War I – decades before President Harry S. Truman issued an executive order that created the modern classification system, in under which documents may be considered confidential, secret or top secret. The President is the final arbiter of whether any of these classifications apply or should be waived.

As a result, while these classifications – especially top secret ones – can be good indicators that a document likely meets the “national defense information” standard covered by the Espionage Act, accusations in under this law can be brought against someone who has hoarded national security. secrets even if they were not deemed classified.

The list of items the warrant authorized the FBI to seize reflected this nuance. He said officers could take away “documents with classification marks”, as well as anything in the boxes or containers where they found those files, but also any information “regarding the retrieval, storage or transmission national defense information or classified material”.

The government did not say what specific documents investigators believe Mr. Trump kept at Mar-a-Lago, or what they found there. The inventory of items was vague, including multiple mentions of “various top secret documents”, for example.

But the warrant’s invocation of “retrieving, storing, or transmitting” secret information offered a potential clue to at least one category of files the FBI might have been looking for. A possible interpretation of this phrase is that it alludes to encrypted communications, hacking or surveillance capabilities.

The other two laws invoked in the warrant have nothing to do with national security.

The second, Section 1519, is an obstruction law that is part of the Sarbanes-Oxley Act, a sweeping package of reforms enacted by Congress in 2002 after financial scandals at companies like Enron, Arthur Andersen and WorldCom.

Section 1519 provides a penalty of up to 20 years in prison per offense for destroying or concealing documents or records “with intent to obstruct, obstruct, or influence the investigation or the proper administration of any matter” within the jurisdiction of federal departments or agencies.

The warrant does not specify whether this obstructionist effort refers to the government’s attempts to recover all publicly-owned records that should be turned over to the National Archives and Records Administration, or something separate.

The third law the investigators cite in the warrant, Section 2071, criminalizes the theft or destruction of government records. This makes it a felony, in part punishable by up to three years in prison per violation, for anyone with custody of a federal court or state court record or document. public to conceal it, remove it, mutilate it, tamper with it or destroy it voluntarily and unlawfully.

While the list of items that the search warrant authorized FBI agents to seize singled out “documents with classification marks,” it contained a separate catch-all phrase that seemed intended to retrieve any government-owned documents that Mr. Trump had illegally taken and kept.

Officers were authorized to seize “any government and/or presidential records created between January 20, 2017 and January 20, 2021” – the dates of Mr. Trump’s presidency – as well as “any evidence of tampering, destruction or concealment of any government and/or presidential records, or any documents bearing classification marks”.

Notably, another penalty under Section 2071 for any conviction is that the defendant is disqualified from holding federal office. Against the backdrop of widespread expectations that Mr. Trump intends to run for president again in the 2024 election, this provision has drawn particular attention.

However, many legal scholars believe a Section 2071 conviction is unlikely to prevent Mr. Trump from running again. Supreme Court rulings suggest that because the Constitution sets out criteria for eligibility for the presidency, Congress cannot, under criminal law, change that standard.

nytimes

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