Donald Trump appears likely to be indicted, according to former Fox News legal analyst Andrew Napolitano, for a crime the former president believes should be punishable by death.
The conservative former judge said it pained him to write his analysis for the Washington Times, but Napolitano said the redacted affidavit that justified the search warrant for Mar-A-Lago revealed that Trump was unlikely to escape prosecution 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."
"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," Napolitano wrote. "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.'
Napolitano faulted Trump for "misreading and underestimating" federal investigators and delivering them a gift by boasting that he had unilaterally declassified the documents in question, which proved that he knew the documents were in his possession.
"He committed a mortal sin in the criminal defense world by denying something for which he had not been accused," Napolitano said.
Prosecutors must prove the documents actually do contain national defense information, and they must prove that Trump put them into the hands of individuals not authorized to handle them and stored them in an non-federally secure place -- which Mar-A-Lago is not -- but proving obstruction is fairly easy under a law signed by George W. Bush in 2002.
"But the Bush-era statute, the one the feds contemplate charging Mr. Trump with having violated, makes it a crime of obstruction by failing to return government property or by sending the FBI on a wild goose chase looking for something that belongs to the government and that you know that you have," Napolitano wrote. "This statute does not require the preexistence of a judicial proceeding. It only requires that the defendant has the government’s property, knows that he has it and baselessly resists efforts by the government to get it back."
That left Trump in "hot water," Napolitano wrote, and he said the former president was left without a "legally viable" defense.
"In a monumental irony, both Julian Assange, the WikiLeaks journalist who exposed American war crimes during the Afghanistan and Iraq wars, and Edward Snowden, the former National Security Agency employee who exposed criminal mass government surveillance upon the American public, stand charged with the very same crimes that are likely to be brought against Mr. Trump," Napolitano wrote. "On both Mr. Assange and Mr. Snowden, Mr. Trump argued that they should be executed. Fortunately for all three, these statutes do not provide for capital punishment."
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