This has happened before. At least twice, cases were never prosecuted for that reason.
In 1942, right after the Battle of Midway, the Chicago Tribune revealed top secret intelligence capabilities. Prosecution was eventually avoided only because presenting that info as evidence in a court room would reveal the secrets of the navy's ability to intercept & decrypt Japanese military radio traffic.
In 1968, the LBJ administration had direct evidence (legally obtained wire taps) that Tricky D!ck Nixon was communicating with the government of South Vietnam to derail the peace discussions taking place in Paris. This occurred during the fall election campaign of 1968. At the time, Nixon was a civilian, prevented by US law from participating in or interfering with diplomacy with foreign nations. It was argued that revealing the nature of the info that led to authorizing the wire taps was more important only if it was kept secret. The US was intercepting & reading the communications between the government of South Vietnam and it's ambassador in Washington.
Gives a whole new meaning to the phrase "White House Plumbers"
The Chicago Tribune and Nixon cases you mentioned are interesting.
In my post I was referring to the public battle between DOJ and Trump. Trump seems to have the advantage because he can say almost anything he wants (other than disclosing classified information, of course, but I suspect he'd want to say there wasn't any), whereas the DOJ is very limited (in part due to it's own rules against going public with information concerning a criminal investigation).
I'm not sure how it would actually play out in court. Here's 18 U.S.C 1924
18 U.S. Code § 1924 - Unauthorized removal and retention of classified documents or material
(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States
, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both.
(b) For purposes of this section, the provision of documents and materials to the Congress shall not constitute an offense under subsection (a).
(c) In this section, the term “classified information of the United States
” means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.
Sandy Berger and Patraeus both pleaded guilty under section 1924:
In the retired general's case, the FBI executed a search warrant at his home and seized notebooks allegedly containing classified material.
This law has new and improved teeth due to the 2018 changes signed into law by Trump:
Back in 2018, Donald Trump signed into law a bill toughening sentencing for mishandling classified info that received little attention at the time.
I have not reviewed the court filings in the Berger and Patraeus cases, so take the following with a grain of salt (or 2)(heck, throw in a margarita). My extremely rudimentary understanding is that the DOJ would only need to prove that the documents were classified, not the actual contents of the documents. Documents are required to be marked:
It seems to me that the prosecutor could present redacted documents that retain the security markings. The trier of fact (judge or jury) could decide if this is sufficient to show that the document contained "classified information of the United States." Presumably, additional evidence (e.g. witnesses) could be entered to support the assertion that the unredacted documents contained classified information.
Just Security has a pretty decent overview of the various federal laws that might apply.
Experts survey the possible crimes underlying search warrants executed at Mar-a-Lago.
From this website:
>>>18 U.S.C. 2071 – Concealment, Removal, or Mutilation Generally
This is perhaps the most-discussed statute since the search, including because it carries as one of its penalties the possible disqualification from holding public office. (Whether that disqualification could apply to the presidency, or whether it would be an impermissible variation of the constitutionally established qualifications
for that office, is a question for another day.)<<<
Given that it is now another day, here's my answer to the question: "Yes."
Further affiant sayeth not.