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U.S. Attorney General Merrick Garland speaks to the press at the Justice Department in Washington, D.C. on February 22, 2022.

U.S. Attorney General Merrick Garland speaks to the press at the Justice Department in Washington, D.C. on February 22, 2022. (Photo: Nicholas Kamm/POOL/AFP via Getty Images)

New Memo Details Legal Case to Indict Trump Over Mar-a-Lago Documents

"Based on the publicly available information to date, a powerful case exists for charging Trump under several... federal criminal statutes," a group of legal experts argues.

Brett Wilkins

A model prosecution memorandum published Thursday by a team of U.S. legal experts lays out potential charges against Donald Trump related to the former Republican president and 2024 presidential candidate's handling of classified government documents since he left office last year.

"Trump's conduct is indeed much worse than most of those prior cases and involves a host of aggravating factors."

The memo, which is based on publicly available information, was authored by a group of former federal prosecutors, defense attorneys, and other legal experts and published at Just Security.

Before issuing an indictment, prosecutors compile a pros memo listing admissible evidence, possible charges, and legal issues pertaining to the case. According to the experts, that document subsequently "provides a basis for 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 former Pentagon special counsel, current New York University law professor, and co-author of the new memo, said the team's "exhaustive analysis of all prior prosecutions brought under the same criminal statute that most directly applies to Trump shows how difficult it will be for the Justice Department to decline to issue an indictment here."

"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 added.

The controversial Espionage Act is a World War I-era law used to prosecute dissidents and whistleblowers from Eugene V. Debbs, Emma Goldman, and Julius and Ethel Rosenberg to Daniel Ellsberg, Chelsea Manning, Julian Assange, Edward Snowden, and Reality Winner.

The Federal Bureau of Investigation is currently probing possible Espionage Act violations committed by Trump, who was found in possession of classified documents allegedly including materials related to a foreign country's nuclear weapons.

Democracy 21 president and memo co-author Fred Wertheimer said that "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."

"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 added. "The process also is far too advanced to now start over with a special counsel to lead the investigation."

The memo analyzes six federal crimes:

  • 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)

"Based on the publicly available information to date, a powerful case exists for charging Trump under several of these federal criminal statutes," the memo argues.

The document's authors explain that they "begin with the standard articulated" by Garland: "'Upholding the rule of law means applying the law evenly, without fear or favor.' In other words, this case must be evaluated for prosecution like any other case with similar evidence would be, without regard to the fact that the case is focused on the conduct of a former president of the United States."

Memo co-author and Brookings Institution senior fellow Norman L. Eisen asserted 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 added. "No wonder that prosecutors seem to be closing in."

The memo's authors also walk through "every defense we could imagine" Trump might invoke.

"Our conclusion," wrote Goodman, is that "none of these potential defenses would provide a complete or effective defense."

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