[“If Trump were anyone else, he would have already faced a
likely indictment,” said lawyer Bradley Moss, who represents intel
agency workers in cases involving classified information. ]
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INSIDE THE JUSTICE DEPARTMENT’S DECISION ON WHETHER TO CHARGE TRUMP
IN MAR-A-LAGO CASE  
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Ken Dilanian
November 11, 2022
NBC News
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_ “If Trump were anyone else, he would have already faced a likely
indictment,” said lawyer Bradley Moss, who represents intel agency
workers in cases involving classified information. _

Documents recovered from former president Trump's private office at
Mar-a-Lago, Department of Justice

 

In February, a week before the National Archives warned the Justice
Department that former President Donald Trump had kept Top Secret
documents at his Florida compound
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Asia Janay Lavarello was sentenced to three months in prison. She had
pleaded guilty to taking classified records home from her job as an
executive assistant at the U.S. military’s command in Hawaii. 

“Government employees authorized to access classified information
should face imprisonment if they misuse that authority in violation of
criminal law,” said Hawaii U.S. Attorney Claire Connors
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who did not accuse Lavarello of showing anyone the documents. “Such
breaches of national security are serious violations … and we will
pursue them.”

Cases like Lavarello’s are a major part of the calculus for Justice
Department officials as they decide whether to move forward with
charges against the former president over the classified documents
found in his Florida home, current and former Justice Department
officials tell NBC News. In another example, a prosecutor
advising the Mar-a-Lago team
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David Raskin, just last week negotiated a felony guilty plea from an
FBI analyst in Kansas City, who admitted talking home 386 classified
documents over 12 years. She faces up to 10 years in prison.

A charging decision may be looming as the Mar-a-Lago investigation
enters what appears to be a decisive phase.

People familiar with the deliberations of Attorney General Merrick
Garland and his top aides say the AG does not believe it’s his job
to consider the political or social ramifications of indicting a
former president, including the potential for violent backlash. The
main factors in his decision, these people say, are whether the facts
and the law support a successful prosecution — and whether anyone
else who had done what Trump is accused of doing
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have been prosecuted. The sources say Justice Department officials are
looking carefully at a cross section of past cases involving the
mishandling of classified material.

Garland himself previewed his approach in a July interview with "NBC
Nightly News" anchor Lester Holt. Though his comments were about the
separate Jan. 6 investigation, Justice Department officials said they
apply broadly.

Holt prefaced a question by saying that “the indictment of a former
president, of a perhaps candidate for president, would arguably tear
the country apart. Is that your concern, as you make your decision
down the road here, do you have to think about things like that?”

Garland answered, “We pursue justice without fear or favor.” 

And when Holt asked whether Trump becoming a candidate would affect
the decision-making, Garland simply repeated that the Justice
Department intended to hold anyone guilty of crimes accountable.

Experts say the public evidence in the Mar-a-Lago case seems
unambiguous.

“If Trump were anyone else, he would have already faced a likely
indictment,” said Bradley Moss, a lawyer who often represents
intelligence agency employees in cases involving classified
information.

“It would be entirely outside of the rule of law to not indict
him,” said former federal prosecutor Andrew Weissmann, an NBC News
contributor who played a key role in special counsel Robert
Mueller’s Russia probe. “The whole point is to treat people
similarly. And when you look at past cases, it compels that you have
to bring a case.”

Kash Patel granted immunity to testify in Mar-a-Lago documents case
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Former prosecutors with experience in cases involving classified
information say that based on the public information alone, the
Justice Department has enough evidence to charge Trump with the
mishandling of national defense information. Less clear is whether
there are aggravating factors — such as whether the Justice
Department can prove Trump obstructed justice by failing to turn over
documents despite a grand jury subpoena.

The addition of Raskin, an experienced former terrorism prosecutor,
and David Rody, another veteran prosecutor who left a law firm
partnership to join the investigation, is widely seen as an effort to
beef up the prosecution team in the event the case goes to trial.

“The National Security Division doesn’t try a lot of cases like
this — they would want to bring in trial lawyers,” said Joyce
Vance, a former U.S. Attorney and an NBC News contributor. “It looks
to me like they are building a trial team.”

Amid reports that Justice Department officials are considering whether
to name a special prosecutor if Trump declares his candidacy for
president, some observers say that would be a bad idea.

“To me that seems idiotic,” said David Laufman, who led the
Justice Department’s Counterintelligence and Export Control Section,
a position now held by Jay Bratt, a key figure in the investigation of
the Mar-a-Lago case.

“It’s precisely in cases like this where so much is on the line
for the Department of Justice that it’s critical for DOJ leaders to
participate in discussions on whether to approve charges,” Laufman
said. “They should have the opportunities to kick the tires hard and
as often as possible, and ultimately they should own the decision to
approve or disapprove for the first time in American history potential
criminal charges against a former president.”

He added, “It’s already baked in that there will be criticism …
and the idea that relegating this to a special counsel will somehow
mitigate or neutralize criticism from the far-right is ludicrous. Just
own it. That’s why you’re in those jobs.” 

Moss agreed, adding, “I really don’t think a special counsel helps
anything here. I think all that does is delay things and bogs things
down. There is nobody who could take the job and not be dragged
through the mud.” 

Not everyone believes that a prosecution of Trump is warranted, based
on the known facts. One former U.S. attorney, a Trump critic, said a
mere documents mishandling case is not serious enough to merit
charging a former president, unless prosecutors can prove aggravating
factors such as intent to share the material, or obstruction of
justice.

“I think it’s a relatively minor case, and I don’t think you
bring a minor case against a former president,” that person said.

Turnout from young Latino voters may have blunted the ‘red wave’
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Yet there are currently people serving long prison sentences for doing
exactly what Trump appears to have done — taken highly classified
information home, with no allegation that they gave it to an
adversary.

One of them is Nghia Hoang Pho, 72, who pleaded guilty in 2017 to
taking highly classified material from his job as a programmer for an
elite hacking unit of the National Security Agency. At sentencing he
told the judge he did it so he could work from home and earn a
promotion before his retirement.

Prosecutors didn’t contest that claim, but another factor made the
case much more serious. Unluckily for Pho, he had been using an
anti-virus product made by a Russian cybersecurity firm, Kaspersky,
which copied some of the highly classified material off of his home
computer without his knowledge. U.S. officials determined that the
files were handed over to the Russian government, leading to one of
the worst intelligence losses in modern U.S. history. The Kaspersky
firm denied giving the files to the Russian government.

Pho “compromised some of our country’s most closely held types of
intelligence and forced the NSA to abandon important initiatives to
protect itself and its operational capabilities at a great economic
and operational cost,” Maryland U.S. Attorney Robert Hur said at the
time. 

Pho got five years in prison.

A former NSA contractor, Harold Martin, was sentenced in 2019 after
prosecutors said he took home at least 50 terabytes of data — the
equivalent of 500 million pages of mostly highly classified material
— over 20 years.

Martin’s lawyers said he was a hoarder, and prosecutors concluded
that he had not given classified information to anyone.

He got nine years.

Legal experts say it’s difficult to compare those two cases with
that of the former president. A closer analogy, they say, would be the
prosecution of David Petraeus, the retired Army general and former CIA
director, who pleaded guilty to a misdemeanor after admitting giving
classified material to his biographer, with whom he was having an
affair, and lied to FBI agents who questioned him about it. He was
sentenced to two years of probation and fined $100,000.

In a somewhat similar case, former CIA Director John Deutch was
pardoned by President Bill Clinton in 2001 as he was poised to plead
guilty to a misdemeanor for keeping top secret codeword information on
computers at his homes in Maryland and Massachusetts.

But few can envision Trump agreeing to admit guilt, as those men did.

Among the factors the Justice Department weighs in whether to pursue
classified-document mishandling cases, former prosecutors say, is
whether the person knew the material included state secrets; whether
they planned to profit from the information; whether they told the
truth to investigators; and the volume and importance of the
classified material.

Prosecutors have put no evidence on the public record suggesting Trump
had any nefarious intent in keeping the classified documents, but
their court filings suggest his case meets the other three criteria.

According to court filings, the National Archives put Trump on notice
that they had received highly classified material from Mar-a-Lago and
suspected there was more there; a Trump lawyer told the Justice
Department all the secret records had been turned over, when that was
not true; and some of the documents seized at Mar-a-Lago were so
sensitive that only a small number of people inside the U.S.
government would be authorized to see them. The FBI seized more than
11,000 documents from Mar-a-Lago, including several hundred marked
classified.

“The reason he will almost certainly be indicted, in my view, is
because of his efforts to obstruct and conceal the documents and
prevent the government from recovering them," said Moss.

A Trump spokesman did not respond to a request for comment. Trump has
called the investigation illegitimate, and his lawyers have likened it
to a document dispute akin to the late return of an overdue library
book.

Even if the Justice Department decides charges against Trump in the
Mar-a-Lago case are warranted, prosecutors will have to clear another
hurdle: securing agreement from intelligence agencies about using some
of the classified information found at Trump’s home in open court. 

It’s not uncommon for the government to decide against moving
forward with an otherwise winnable case because officials conclude
that they can’t risk exposing the intelligence information in court,
according to Laufman. NBC News has confirmed that among the documents
found at Mar-a-Lago are highly classified materials related to China
and Iran — information unlikely to be deemed suitable for public
airing.

“They need to get the intelligence community to play ball,”
Laufman said, “and that means getting whatever agency owns the
information to agree to their use of their classified documents in
furtherance of the government prosecution.”

As for the broader social and political implications of indicting
Trump, Moss said that if the Justice Department doesn’t consider
them, someone in the Biden administration should.

“I would be surprised if on some level political ramifications
don’t get considered and addressed,” he said. “It is a former
president, a likely opponent for the incumbent president in 2024, and
there has never been an indictment in this context before. Those are
not trivial considerations.”

_Ken Dilanian
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justice and intelligence correspondent for NBC News, based in
Washington._

* Donald Trump
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* Department of Justice
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