The three attorneys first examined 18 U.S.C. 1924, "Unauthorized Removal and Retention of Classified Documents or Material."
"Since reporting indicates that the documents the agents were searching for included classified ones, this statute appears at first glance to be an obvious possible violation. Section 1924 makes it a crime to knowingly remove classified documents with the intent to retain them in an unauthorized location," they wrote.
They noted former Trump staffer Kash Patel has claimed many of the records were declassified by Trump.
Eisen, who helped draft White House Executive Order 13526, which restructured the classification system, examined that defense with his colleagues.
"Strictly speaking, even if Trump ordered the declassification of the records (verbally or in writing), what is likely to matter for purposes of handling and storing the records after he left the White House was if the mandatory follow-on actions occurred. Classified documents have classification markings in the header and footer of each page, indicating the level of classification for the document as a whole," they noted. "If Trump did in fact order the declassification, he still needed to make sure his staff took the necessary next steps to modify the classification markings on the documents before he could actually handle and store the records (as a private citizen) as if they were unclassified. Under security classification rules, a classification marking on a document has to be treated as valid and binding unless and until a subsequent marking replaces it. Appropriate government staffers would have needed to cross out the classification markings in the headers and footers, and stamped 'declassified' on the record noting when it was declassified, by whom and under what authority. Since that does not appear to have been done with the classified documents reportedly identified to date, the documents remain classified and had to be treated as classified for handling and storage purposes.
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The three also examined 18 U.S.C. 2071, "Concealment, Removal, or Mutilation Generally," which has received a great deal of attention as it could potentially bar Trump from running for office in 2024.
"This is a more attractive statute for a prosecutor to apply to Trump than Section 1924, mainly because it does not require that the documents be classified – it applies to all government records," they wrote. "It also seems to fit the facts we know so far, namely that the FBI reportedly searched locations within Mar-a-Lago other than the room originally shown to DOJ during their June visit – suggesting that they had received information in the interim that additional documents were being stored, or concealed, elsewhere. For example, FBI agents allegedly searched Trump’s personal safe and his closet. Evidence that Trump had failed to reveal the full scope or all the locations where government records were being stored both to NARA and then to DOJ would also meet the heightened intent standard required by Section 2071, which is that the defendant act 'willfully.'"
They also noted three other potential violations of Title 18 of U.S. Code, which covers federal criminal law.
"A partially overlapping offense to Section 2071 can be found in 18 U.S.C. 641, which provides for criminal penalties against anyone who 'steals, purloins, or knowingly converts to his use or the use of another' government property," they wrote. "Section 1361 applies to anyone who “willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof.” The severity of the penalty depends on the extent of the damage done to the government property in question, in this case the official documents that Trump is alleged to have mishandled including during his White House tenure."
The noted Section 1361 could potentially apply to documents Trump reportedly flushed down the toilet.
The three also noted Section 793, "Gathering or Transmitting Defense Information," may also apply.
"In a conventional White House not consumed with efforts to overthrow an election, the White House Counsel’s Office and relevant personnel would have sorted through the president’s records weeks before Inauguration Day and ensured that any classified records were properly secured. Reporting indicates that Trump’s White House was focused on 'other matters' until the final days of Trump’s presidency, and the resulting failure to separate out classified records may have been the result," the three reported. "The second prong, failing to promptly return national defense information upon learning it was illegally removed from a secure location, would have particular relevance in light of media reporting that Trump continued to have classified records at Mar-a-Lago even after his staff returned records in February. The fact that the FBI had to go so far as request that Trump staffers at Mar-a-Lago secure the room where the remaining classified records were still stored (which the aides then did with a padlock), and that the FBI’s search warrant authorized opening of safes and other locations both give reason to believe the government suspected there were more classified records stored at Mar-a-Lago."
Read the full analysis.
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