His 'souvenir collection' from his White House days may be a result of his hoarding tendencies, but it also creates a serious threat to US national security. His intentions don't matter – neither does his being president. The Espionage Act makes it clear that Trump's acts constitute a serious violation of the law.
I agree it's a threat to national security.
For the most part I agree that his having been president doesn't matter, but it does make a difference for purposes of certain laws such as the Presidential Records Act that are in play:
Who can possess the documents, and when?
www.lawfareblog.com
I'm not so sure that "his intentions don't matter" with regards to the Espionage Act. On the face of it, Section 793(f) only requires "gross negligence." As I see it, there's almost no doubt Trump's handling of the documents constitutes gross negligence. If that was the end of it,
intent doesn't matter But, here's what Comey said about the Clinton investigation:
>>>In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.<<<
Director Comey's statement to the press on the FBI’s investigation of Secretary Clinton’s use of a personal e-mail system during her time as Secretary of State.
www.fbi.gov
Here's a blog post arguing that Comey was correct, and that the Espionage Act would be unconstitutional if the courts did not construe it as requiring intent:
>>>The issue of
mens rea, or intent, is not as simple as it seems on the surface, and intent is the correct standard. Comey was right not to recommend filing charges and to base his decision on the absence of evidence that Clinton had the necessary intent. . . This helps provide context as to why James Comey insisted that intent was required to satisfy the requirement of 793(f). Even though the plain language of the statute reads “gross negligence,” the Supreme Court has essentially rewritten the statue to require intent to sustain a conviction. . . . The [Supreme] court [in Gorin v. United States] made clear that if the law criminalized the simple mishandling of classified information, it would not survive constitutional scrutiny, writing:
The sections are not simple prohibitions against obtaining or delivering to foreign powers information… relating to national defense. If this were the language, it would need to be tested by the inquiry as to whether it had double meaning or forced anyone, at his peril, to speculate as to whether certain actions violated the statute.
In other words, the defendant had to intend for his conduct to benefit a foreign power for his actions to violate 793(f).
Without the requirement of intent, the phrase “relating to the national defense” would be unconstitutionally vague.<<< (emphasis added)
On July 5, FBI Director James Comey announced that he was not going to recommend the filing of criminal charges against Hillary Clinton over her use of a
warontherocks.com
It will be interesting to see what evidence is developed in the Trump investigation. One distinction in the Clinton case is Comey's statement that the cases that had been prosecuted involved "efforts to obstruct justice." I suspect this might be part of the reason the DOJ included Sections 2071 and 1519 in the affidavit.
Of course, if there's sufficient evidence, he could be charged for violating additional federal laws that were not listed in the search warrant. Here's a (non-exhaustive) smorgasbord of laws that might come into play if sufficient evidence is developed:
50 U.S.C. 3121 - Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources
www.law.cornell.edu
18 U.S.C. 794 - Gathering or delivering defense information to aid foreign government
www.law.cornell.edu
18 U.S.C. 952 - Diplomatic codes and correspondence
www.law.cornell.edu
18 U.S.C. 1924 - Unauthorized removal and retention of classified documents or material
www.law.cornell.edu
It appears to me that section 1924 could very well come into play at some point, even though the DOJ didn't include it in the search warrant. This was clearly done to avoid giving Trump an argument that the warrant was fatally flawed because he declassified the documents. However, if Trump is indicted I'd expect a section 1924 charge, and I'd also expect Trump to lose an argument that he declassified the documents.
18 U.S.C. 35 - Imparting or conveying false information
www.law.cornell.edu
Again, this not an exhaustive list.
