Opinion | Espionage Isn’t the Strongest Case Against Trump. It’s Simpler Than That.

Former president Donald Trump’s stubborn refusal to return highly classified material forced the Justice Department’s hand, resulting in the execution of a search warrant at his residence. But while it is possible the DOJ merely wanted to retrieve and secure the material that Trump refused to give back to the government, if they decide to press forward with charges, their case looks quite strong.

The government initially treated Trump with kid gloves when he took government property, including classified documents, with him after he left office. The National Archives negotiated with Trump’s attorneys, securing 15 boxes of documents improperly taken by Trump in January, some of which contained classified information. In June, the DOJ’s top counterintelligence official and other federal officials traveled to Trump’s Mar-a-Lago estate and viewed additional material kept there by Trump, and they issued a subpoena demanding the return of classified material.

If you or I had some 21 boxes of potentially classified information in our home, the Feds wouldn’t ask for it politely or even issue a subpoena. They would have taken possession of that material right away, and we would face serious charges. The DOJ’s decision to wait and only obtain a search warrant after they received information that Trump had not relinquished all of the material was likely motivated by deference to the former president. Ironically this deference has likely strengthened a potential criminal prosecution of Trump.

Much of the initial reaction to the search warrant focused on the Espionage Act, which was cited in the search warrant. While the title of that over 100-year-old law sounds like it has to do with spying, it is possible to violate the Espionage Act just by improperly retaining national defense information and failing to return it to the United States government when it is demanded.

That statute, along with one of the other statutes cited in the search warrant, require the prosecution to prove “willfulness.” In other words, they require the government to prove beyond a reasonable doubt that the defendant intended to break the law. It is often difficult to meet this burden, and one strategy I used as a federal prosecutor was to have agents serve targets of investigations with a notice indicating that what they were doing was breaking the law. If the target continued to violate the law after receiving the notice, we had the proof we needed.

DOJ’s repeated requests and demands to Trump and his team served the same purpose. It will be difficult for Trump to claim that he did not realize that the records he kept were national security secrets that rightfully belonged to the government, given that the government repeatedly told him so and demanded their return. Moreover, Trump was present when the DOJ visited Mar-a-Lago to meet with his lawyers and demand the records.

Despite Trump’s insistence that if the government wanted the records back, “all they had to do was ask,” the government repeatedly asked for the records and Trump refused to give them back, giving them only “what he believed they were entitled to.” Although Trump may believe that highly classified defense secrets are his own personal property, or that he could keep Top Secret documents because he informally “declassified” them without following established procedures, it will be difficult to convince jurors that he had a legitimate reason to keep such sensitive national security information at his Florida resort.

While Trump repeatedly evaded criminal liability for acts he committed while in office, in part because the office he held provided him with potential defenses, he is no longer president. And unlike other outside-the-box acts he allegedly engaged in, like ordering that the special counsel who investigated him be fired (which his White House counsel disregarded), or inciting a mob to attack the Capitol, taking classified material and concealing it from the government is a crime that is regularly charged and straightforward to prove. Government employees are charged, convicted and sentenced to lengthy prison terms for doing what Trump did.

Trump’s defense appears to be that he “had a standing order” declassifying every document he brought to his residence. While I suspect Trump could find aides willing to testify that this is true, I doubt he disclosed this to the government during their months of negotiations and it is unlikely a jury would find this story convincing. Even if they did, none of the criminal statutes cited by the DOJ in the search warrant require that the documents were classified. While DOJ typically brings those charges only where the material was classified, the underlying materials here are highly classified, including Top Secret and Sensitive Compartmented Information, highly sensitive information that can only be viewed in secure government facilities.

But because the government is not required to prove beyond a reasonable doubt that the materials in question were classified, Trump’s “defense” that he declassified the materials would not itself defeat the government’s claim that the information was closely held national defense information, as required by the statutes.

Trump’s best defense would likely be that he didn’t really know that classified material remained at Mar-a-Lago, because he relied on his aides and lawyers, who told him that they gave all the classified material back to the government. The problem for Trump is that doing so would likely waive attorney-client privilege between himself and the lawyers he is pointing the finger at, and it’s unclear whether any of them would be willing to take the fall for him.

Obviously, the underlying evidence against Trump is not yet public, but even based on the limited information we have, it looks like the DOJ has viable charges against him. That doesn’t mean that they will bring them. The main purpose of the search warrant was likely the recovery of classified material, and DOJ might go no further.

I would not be surprised if DOJ refuses to pursue charges, regardless of their strength, in the absence of a “plus factor” like obstruction. But that factor might be present here, given recent reports that one of Trump’s lawyers signed a written statement falsely asserting that “all material marked as classified” had been returned to the government. That falsehood might be why an obstruction statute was included in the search warrant executed at Trump’s residence.

That false representation creates potential liability for the lawyer, because lying to the federal government is a crime if it is done knowingly and willfully. DOJ could investigate that lawyer, who could claim that she relied on Trump’s false statements or — if she lied on her own — potentially flip on him. If DOJ can establish that Trump was personally behind efforts to obstruct their investigation, they very well might charge him.

If not, this could be one of the strongest cases that DOJ refuses to bring.