Legal experts say DOJ must indict: “Trump’s conduct is indeed much worse than most prior cases”

A team of legal experts published a new model prosecution memorandum on Thursday that lays out the potential charges against former President Donald Trump and his mishandling of classified government documents after leaving the White House. 

Federal prosecutors, defense attorneys and other legal experts published the memo, which was based on publicly available information, at Just Security, an online forum for the rigorous analysis of national security and foreign policy. 

According to the legal experts, before issuing an indictment, prosecutors compiled a pros memo, which listed the possible charges and admissible evidence for the case. The document, they write, allowed “prosecutors and their supervisors to assess whether the case meets the standard set forth in the Federal Principles of Prosecution, which permit prosecution only when there is sufficient evidence to obtain and sustain a prosecution.”

Ryan Goodman, a New York University law professor and former Pentagon special counsel who was listed as a co-author of the new memo, said that their “exhaustive analysis” of the prior prosecutions brought under the same criminal statute which relates to Trump’s case makes it easy for the Justice Department to issue an indictment. 

“Trump’s conduct is indeed much worse than most of those prior cases and involves a host of aggravating factors that one seldom sees in cases brought under the Espionage Act’s retention clause,” Goodman wrote.

The Espionage Act is a contentious World War I-era law that allows the United States to prosecute dissidents, including whistleblowers such as Chelsea Manning, Julian Assange and Edward Snowden.

Trump making his announcement after stealing 300+ classified docs

Reality Winner jailed for 1 doc shared trying to protect our elections https://t.co/Ps6nd2gScU

— Sarah Reese Jones (@PoliticusSarah) November 16, 2022

Based on this precedent, the Federal Bureau of Investigation is looking into whether Trump violated the espionage act, as they found classified documents in his Mar-a-Lago home that allegedly included information related to a foreign country’s nuclear weapons. 

The memo analyzes six federal crimes as they relate to Trump’s case, and argues that based on publicly available information “a powerful case exists for charging Trump under several of these federal criminal statutes”:

• Retention of national defense information (18 USC § 793(e));
• Concealing government records (18 USC § 2071);
• Conversion of government property (18 USC § 641);
• Obstruction of justice (18 USC § 1519);
• Criminal contempt (18 USC § 402); and
• False statements to federal investigators (18 USC § 1001)

The memo’s authors also looked into “every defense” they could imagine Trump invoking but their conclusion, according to Goodman, is that none of them would be effective. 

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Co-authors of the memo, including Democracy 21 President Fred Wertheimer, added that Trump should not be granted special treatment during the indictment process. 

“Trump’s status as a former president and as a current presidential candidate is and must be treated as irrelevant by Attorney General Merrick Garland in deciding whether to indict Trump,” Wertheimer said.

“Garland’s decision must be based on the facts, the law, and the standard of applying the law equally for all citizens, as detailed in our report,” he wrote. “The process also is far too advanced to now start over with a special counsel to lead the investigation.”

Using Garland’s own standards, the memo argues that the DOJ must uphold the rule of law, which means “applying the law evenly, without fear or favor.” The co-authors assert that Trump’s case must be prosecuted like any other, “without regard to the fact that the case is focused on the conduct of a former president of the United States.”

Brookings Institution senior fellow and memo co-author Norm Eisen explained that “if anyone else had handled even a single highly classified document in this way, they would be subject to investigation and likely prosecution.”

“Donald Trump mishandled a huge volume of them,” Eisen explained. “No wonder that prosecutors seem to be closing in.”