There could be crimes Trump committed that are so secret it isn't worth charging: Experts

Two national security experts flagged that there are crimes Donald Trump committed that could be so serious that he isn't being charged with them.

Andrew Weissmann, former FBI general counsel and special counsel Robert Mueller's senior prosecutor, joined Mary McCord, former DOJ acting assistant attorney general for national security, in their MSNBC podcast this week. They talked through the revelations from the report that Trump revealed nuclear information to an Australian businessman.

The concept seems counter-intuitive, but Weissmann explained that some things are so secret and so highly secretive that it isn't worth charging to have that information out in the world.

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"So, this is all going to be speculation, but with you know our criminal backgrounds and our national security background educated speculation," Weissmann began. "I think, first the issue of why it wasn't charged there could be a whole variety of reasons. I have to say, one of my favorite reasons for why things have been happening is I think people need to really understand the time pressure on the special counsel. He was appointed in November and he has done this amazing amount of work. If you just look at the Florida case there was already been a superseding indictment they added a count about Bedminster they added the additional obstruction." It may be that the "information was developing and they're still pursuing this as part of the national security spill investigation. ... So, it is just possible, this is a matter of timing."

His second reason is what is the most startling to consider.

"The other is, it also could be that it's information that says sensitive that the government doesn't want to use it a trial," he explained. "And we've talked about that which is that the difficult part of these types of cases is that you don't want to charge using information or documents that are so sensitive that the information would get out in the wild just by bringing the case. It's been referred to as the Goldilocks approach, which is you want the information to be important enough that the jury understands why you're bringing the case, but you don't want the information to be so sensitive that you're giving up nuclear secrets."

McCord explained that there are two charging documents in the Mar-a-Lago indictment relating to nuclear capabilities.

"One is a formally restricted document," she recalled. "But the other is top-secret. Count five, says: 'Concerning the nuclear capabilities of a foreign country.' And it is so sensitive that even the code words for the designation of its classified nature, it's sensitive nature, are redacted. That's how sensitive it is. And, so, if this information is true it could be information that the Department of Energy, because if we're talking about nuclear capabilities, we're talking about classification under the Atomic Energy Act, which is sort of different than the classification procedures. This is a whole separate law around classification under the Atomic Energy Act."

The other possibility, she said, is that the information Trump gave could also be wrong or a lie and that's why he wasn't charged specifically in that case. If the information Trump leaked wasn't actually information that was real, it wouldn't be charged.

In this case, however, the Australian businessman, Anthony Pratt of Pratt Industries, was not only investigated, but he was investigated such that he was asked about every person he told about this information. The implication is that the Justice Department wouldn't ask for those individuals if the information was a lie.

Listen here to the full podcast of Weissmann and McCord as they walk through the new information in the classified documents case.