The FBI’s search of Mar-a-Lago, followed by its characteristic silence regarding an ongoing investigation, has left the door open to rampant speculation. One thing’s clear: Donald Trump is under serious scrutiny for his handling of classified information. I spoke with Bradley P. Moss, a lawyer who specializes in national-security issues, about the laws Trump may be under investigation for breaking, what prosecution of a case involving classified documents would look like, and whether the Department of Justice should explain what it’s doing.
Even some non-Trumpers who believe that no president should be above the law are a little uneasy about the Mar-a-Lago search. There’s a lot we don’t know about what the Department of Justice is after, but where do you land on the balance between following the letter of the law and trying to avoid political backlash?
I think, with the Justice Department, this appears to be — and I’m basing this only off of what we know from public reporting — the last resort. The only reason they even learned initially of the missing records was because, a year after Donald Trump had left the White House, they discovered that there were all kinds of records missing from what was supposed to have been turned over when Trump finished his term, and they reached out to Trump’s staff at Mar-a-Lago. That was where the initial 15 boxes of information came from, and all kinds of classified documents were found in the boxes. That resulted in the referral to the DOJ, and the DOJ has spent the last six, seven months negotiating with Trump’s team, trying to gather whether there were any additional records. As the reporting indicates, in June, they went out to Mar-a-Lago for an inspection and found more documents, and discussions have continued further since then.
So the Justice Department had a very difficult conundrum. They knew they were going to get slammed. They know there’s very little they can say publicly under DOJ rules and grand-jury secrecy provisions about why they’ve done this. But they also know that there’s classified information sitting out there in an unsecured location. Any number of foreign visitors come to Mar-a-Lago all the time, any number of people can get in and out, and it doesn’t meet government security requirements. So they had to take action. If they felt the Trump team was simply not moving quickly enough, if they felt they were concealing things, that’s when they step in and say, “Enough is enough. You’ve had 18 months, and this is a matter of national security. We’re executing the search warrant and deciding if there’s going to be punishment for what was done.”
The DOJ has a policy of not commenting in the middle of an investigation. I see a lot of Republicans (but not just Republicans) calling on the DOJ to explain what it’s doing here given the unique circumstances. Do you think it should? And do you think it might do that?
No, I don’t think they should comment. And it’s for the reason that Trump is entitled not only to privacy on this matter but to a presumption of innocence. To disclose during an ongoing investigation, where there has been no indictment yet, details about what they’re investigating would prejudice not only Trump but a potential jury pool. If there is enough to bring a charge, they bring a charge and speak to the public through the indictment and what comes out during the trial. If they were to do it publicly, now, it would prejudice the entire process and violate any number of due-process principles that, ordinarily, Republicans are always talking about.
Do you see any indication that this search has to do with anything other than the issue of classified documents?
I’ve seen all the speculation. I read a column in National Review by Andrew McCarthy arguing that this is more about January 6. I remain of the view that it’s separate, only because I have no reason to believe anything January 6–related would be at Mar-a-Lago. It’s the last place I think Trump would’ve stored that stuff.
Maybe it’s beneath the Capitol building somewhere?
It’s in the fireplace with Mark Meadows’s documents.
Do you see any significance in the fact that Trump hasn’t made public the warrant that he must have received, which would presumably list what the FBI was after and what it took from Mar-a-Lago?
This is the scam that Trump runs. By concealing the actual documentation, he and his allies can portray the whole situation however they want. They can throw innuendo and accusation out there; they can do everything they can to rev up their base. Their media allies, especially on Fox, OANN, and Newsmax, were all over the place with every wild accusation under the sun. And here’s the thing. If any of those accusations that we’re hearing from Trump lawyers had a modicum of merit, there would’ve been emergency motions for temporary restraining orders to enjoin the FBI from going through everything; there would’ve been motions to suppress the warrant itself. This is what actual lawyers with credible arguments would be doing right now, not going on TV and leveling innuendo and accusations. But because they don’t have anything to really rely on, they don’t take that step. As people like Sidney Powell and her team of crack lawyers have learned, you can’t play the cable-news game in court.
You co-authored a piece at Just Security on Tuesday, which outlines the actual statutes Trump may have violated for allegedly hoarding classified information at Mar-a-Lago. Which of his possible offenses do you think is the most serious?
The most serious are the ones that fall under the Espionage Act. Those provisions don’t contain any limit on whom they would apply to. One of the other provisions we had mentioned has a potential limiting scope, since it refers only to officers of the United States — and there’d be a debate over whether the president is an officer of the United States. The other provisions don’t include that. They refer to anyone who originally had authorized access to the classified information, which Trump did (up until Joe Biden took the oath of office), then either willfully or through gross negligence allowed it to be removed from a secure location to an unsecured location or disseminated to an unauthorized party. That could encompass a situation where Trump had these boxes of records and whatever was in the White House, and they were shipped down to Mar-a-Lago through unsecured means. There’s no indication it was done in a secure transport.
Then the boxes were stuck in a basement in an unsecured room. That would seem to fall within the scope of those two provisions. A subsection says if the original authorized party becomes aware that the classified information has been placed in the unsecured location and takes no step to rectify the situation, it can imply liability. We know Trump was notified months ago about what was at Mar-a-Lago, and authorities continued to find more classified documents. That’s part of the reason the search warrant was executed.
I was thinking of famous examples of classified information being mishandled — there was former national security adviser Sandy Berger, David Petraeus, Hillary Clinton. Obviously, none of these people are ex-presidents. Is there any direct analog with other public officials to what Trump may have done? And what ended up happening in those cases?
Petraeus and Berger are two of the more high-profile incidents. With Petraeus, part of the issue was that he was storing classified notebooks in his attic. The misdemeanor he pled guilty to is now a felony under a law that Trump signed in 2018. That was part of the fallout from the Hillary Clinton saga. One of the things that Republicans were upset about was that the provision most likely to be invoked was only a misdemeanor at the time. So they modified it in 2018 to become a felony going forward.
The other examples have been individuals who aren’t high-profile public officials but mid-level bureaucrats at several agencies who have been prosecuted and either pled guilty to or been convicted of removing classified documentation and storing it in unsecured locations. But by and large, the government usually does not prosecute those cases, because they find it sufficient to simply fire the employee and revoke their security clearance. They do choose sometimes to pursue criminal prosecution in certain circumstances when they believe the offense is egregious enough. A criminal prosecution for removal of classified information requires a more complicated criminal proceeding that involves what’s known as the Classified Information Procedures Act and allows all sorts of classified discovery to the defendant. That’s not something the government likes to do all the time. So, often, they exercise their discretion not to prosecute, but they certainly have done so in the past.
Trump’s lawyers may argue that he’d already declassified the documents in question before his presidency ended. I don’t quite understand why we don’t know whether he declassified them a year and a half after he left office.
The reason we don’t know is because Trump’s administration was chaotic and completely incompetent at basic administrative duties. So yes, this will be their likely defense. It’s an uncharted issue of law, because there’s never been a president who’s been prosecuted for this. The president of the United States and only the president of the United States has a unique authority when it comes to classification and declassification. The president is the ultimate authority, without scrutiny or any oversight, of what is classified and what is declassified. He can share properly classified information with anyone he wants with impunity. No one can oversee it. That’s his constitutional authority under Article II. But if you do choose to move to declassify something, there are procedures and security-classification rules as to how you do so. It can’t be as simple as Trump looking at a box of documents and saying, “I declare them declassified.”
Every single document has to be specifically identified, and a procedure has to be followed to declassify it, because every single classified document is logged. The way it works is that you have a cover page that indicates the classification for the document. You have classification markings at the top and bottom of each page, and you have a stamp on every classified document that indicates when it was classified, by whom and under what authority in the executive order, and when the classification ends. When you declassify something, you have to address all of that for each document. Not only do you have to mark out the markings, you have to stamp it “Declassified” and say who declassified it, under what authority, and when. Until you do that, no matter what verbal order Trump may have given, the document is still to be treated as classified.
That doesn’t sound like the level of attention to detail the Trump White House was known for.
Correct. And that will possibly be his downfall here. The unresolved issue is, if he thought these documents had all been declassified, does that undermine the intent element for some of these crimes? It certainly will be a fascinating legal debate in pretrial motions.
I was going to ask how his defense on this would hold up in court, but I guess it depends on what we learn about these procedural issues.
There is not a lawyer alive who can tell you with any complete certainty how that would play out, because there is no precedent. There is zero precedent for when a former president is accused of having mishandled classified information. We are in completely uncharted territory. Everyone is speculating, giving their best professional opinions, but no one knows how the initial trial-court judge would rule. No one knows how the appellate court, which would certainly be involved if Trump loses, would rule, and no one knows how the Supreme Court would rule.
I have a pretty good idea of how Clarence Thomas would rule.
This is the ironic part. Clarence Thomas is a huge proponent of executive authority. The problem for Trump here might be that Joe Biden hasn’t concluded that the documents have been declassified. That might work against Trump.
What do you think happens next?
The FBI will go through all the records. They’ll see if what they’ve collected corroborated their concerns that additional classified documents had been stored at Mar-a-Lago, and they’re going to have a choice to make. They’ve been doing interviews for months. They’ve been collecting information. They’re gonna have to decide, first, whether there’s a criminal case to bring under any of the provisions we’ve discussed. And second, is it rock-solid enough to bring against a former president — keeping in mind the potential declassification defense he’s almost certainly going to raise in pretrial motions. That is ultimately not just a legal question but a political one. I would not be surprised to see that question brought all the way up to the attorney general himself for a final decision.
This interview has been edited for length and clarity.
More From This Series
- It’s Blindingly Clear the Feds Failed to Investigate Trump’s Finances
- Trump Burdened by Power to Declassify Documents With His Mind
- Top-Secret Documents at Trump’s Mar-a-Lago: What We Know