If President Joe Biden’s speech is any indication, this administration’s latest strategy is to make the public terrified of the possibility that his predecessor, Donald Trump, might make his way back into the Oval Office in 2024. After the FBI’s search of the former president’s home at Mar-a-Lago, one question has been on everyone’s mind: Will the Justice Department attempt to indict Trump?
Even before Darth Brandon’s speech on Thursday, people were speculating as to what the Bureau found when it raided Trump’s home and what the DOJ might be planning to do with it. Now, it is seeming even more likely that an indictment is on the horizon, especially after the conclusion of the midterm election.
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But it is worth noting that while it appeared that the Bureau was originally investigating the former president for possible violations of the Espionage Act, they might be expanding their efforts to see if they can also nail him on an obstruction of justice charge. In a piece for the Washington Times, former Judge Andrew Napolitano wrote:
Even a cursory review of the redacted version of the affidavit submitted in support of the government’s application for a search warrant at the home of former President Donald Trump reveals that he will soon be indicted by a federal grand jury for three crimes: Removing and concealing national defense information (NDI), giving NDI to those not legally entitled to possess it, and obstruction of justice by failing to return NDI to those who are legally entitled to retrieve it.
President Trump and his allies have contended that he engaged in no wrongdoing because he declassified the documents he brought to Mar-a-Lago. Indeed, I wrote previously that the subject of declassification might play an important role in this affair. But, Napolitano intimated that classification is not a defense when it comes to sensitive documents related to national defense information (NDI).
“It is irrelevant if the documents were declassified, as the feds will charge crimes that do not require proof of classification,” Napolitano elaborated. “They told the federal judge who signed the search warrant that Mr. Trump still had NDI in his home. It appears they were correct.”
Under the law, it doesn’t matter if the documents on which NDI is contained are classified or not, as it is simply and always criminal to have NDI in a non-federal facility, to have those without security clearances move it from one place to another, and to keep it from the feds when they are seeking it. Stated differently, the absence of classification — for whatever reason — is not a defense to the charges that are likely to be filed against Mr. Trump.
The former judge also indicated that the DOJ must prove that “the documents actually do contain national defense information,” and that “Mr. Trump put these documents into the hands of those not authorized to hold them and stored them in a non-federally secured place.”
According to Napolitano’s article, experts in the intelligence community have analyzed the documents and “are prepared to tell a jury that they contain the names of foreign agents” working for the United States and that “Mr. Trump’s Florida home is not a secure federal facility designed for the deposit of NDI.”
Former Assistant U.S. Attorney and conservative columnist Andrew C. McCarthy also chimed in with an op-ed in the New York Post, indicating that the DOJ will seek to prosecute Trump. However, he seemed to believe that the authorities would focus on the obstruction of justice charge because it might be easier to get a conviction. “Classified information cases are very difficult to do, even without the added complication of a suspect who happens to have been the only official in government with the power to declassify any intelligence,” McCarthy pointed out. “It is hard to prove the case without risking disclosure of the intelligence. And a prosecution centering on unlawful retention of government records has its own complications.”
The author continued:
By contrast, obstruction is uncomplicated and easy to prove. There would be no need to get into the content of government documents, classified or not. The case would focus on Trump’s allegedly lying about having government records and concealing them. What’s in the documents is beside the point.
McCarthy’s assessment appears to be more apt in this regard. The DOJ might have a much easier time honing on obstruction charges instead of getting into the weeds with what Trump classified, didn’t classify, or whether it even matters. Moreover, if it is found that Trump violated some rule regarding the possession and storage of NDI, if it caused no harm, it does not seem likely this would be viewed as an egregious enough offense to prevent him from running in 2024. Indeed, it would come off even more like a politically-motivated witch hunt.
I believe this case will hinge on whether the authorities can make an obstruction charge stick. They tried this before when the Deep State was still trying to convince the nation that the Orange Man What Is Bad™ was a Russian asset. But all indications suggest that we will have to wait until shortly after the midterms to see what the DOJ has in store.