National security experts and former federal prosecutors have told The Independent the classified material identified in 15 boxes of records retrieved from former president Donald Trump’s Mar-a-Lago residence by National Archives and Records Administration (Nara) officials could pose a more perilous threat to his freedom and his plans for a 2024 presidential campaign than any investigation into his attempt to overturn the 2020 election.
According to Archivist of the United States David Ferriero, Nara officials have found items bearing markings used to identify classified materials within the boxes, which he said are still being inventoried.
The explosive revelation came in a letter from Mr Ferriero to House Oversight Committee chair Representative Carolyn Maloney, who last week asked him if the boxes recovered by Nara were being searched for classified information.
“NARA has identified items marked as classified national security information within the boxes,” he said.
In response to a query from Ms Maloney on whether Mr Ferriero had notified Attorney General Merrick Garland that Mr Trump had removed records from the White House in violation of the 1978 Presidential Records Act, the archivist said Nara officials have been “in communication with the Department of Justice” because they had identified classified material within the boxes.
Mr Ferriero also notified Ms Maloney that Nara is currently “in the process of obtaining” records from former Trump White House staffers who used private messaging accounts and did not copy or forward those messages to their official government communications accounts as required by federal laws.
Additionally, he said Nara “has asked the representatives of [Mr Trump] to continue to search for any additional Presidential records” that were not transferred to the Archives when Mr Trump left office on 20 January last year.
While the Presidential Records Act does not impose criminal penalties on a president or presidential aide who violates it, Mr Trump’s retention of classified documents past the end of his term puts him in violation of a number of federal criminal statutes.
One such document retrieved from Mar-a-Lago, a letter reportedly written to Mr Trump by North Korean dictator Kim Jong-un, could potentially put him at risk for prosecution under laws which govern the handling of classified material.
Mr Trump could not even argue that he did not believe the letter to be classified because he once threatened a Time Magazine photographer with prison for attempting to take a photo of it during a 2019 Oval Office interview.
Bradley Moss, a Washington, DC attorney who specialises in national security law, told The Independent Mr Trump lost any authority to possess classified information once he became a private citizen.
Mr Moss added that Mr Trump could also face prosecution for mishandling classified documents if the letter from Mr Kim — or any other classified material — was transported to Mar-a-Lago in anything but an authorised means for transmitting such material.
“I don't see how those were in any way … unclassified,” he said. How on earth he had those set aside and shipped down there remains to be seen, but that could be a very easy case for criminal exposure”.
According to National Security Counselors executive director Kel McClanahan, the ex-president could also face prosecution even if the letter was not technically classified because his possession of it after his term was up violated a provision of the Espionage Act pertaining to “national defence information”.
“The Espionage Act says there has to be National Defence Information but it doesn’t have to be classified,” he explained. “National Defence Information is helpfully defined as ‘information relating to the national defence,’ which can be expanded to be pretty much anything the government wants it to be”.
But Mr McClanahan said it’s far more likely that the government would choose to prosecute Mr Trump under the provisions of the US criminal code used to prosecute Sandy Berger, the late Clinton administration national security adviser who was sentenced to probation after pleading guilty to stealing documents from the national archives in his socks.
Ironically, Mr McClanahan said Trump also could face criminal charges for destroying government property — the same charges he insisted be pressed against rioters who defaced a Portland, Oregon federal courthouse.
“He’s completely dead to rights on those,” he said.
Nick Akerman, a former federal prosecutor who worked on the Justice Department investigation into Richard Nixon during Watergate, said Mr Trump’s criminal exposure far outweighs anything he might face from anything related to the 6 January insurrection or the potential crimes identified during former special counsel Robert Mueller’s probe into Russia’s interference in the 2016 election.
Mr Akerman said he would probably choose to prosecute Mr Trump under statutes which make it a crime to participate in a scheme to defraud the government out of its property.
“To show that he intentionally destroyed property that he knew belonged to the government, that he took property that he knew belong to the government, that is probably the better way to go, rather than trying to get into this area of classified stuff,” he said.
The fact that in this case, prosecutors would have tangible evidence to show a jury in the form of boxes of documents taken by Mr Trump, puts the Justice Department in a better position than any prosecutor hoping to try the former president on any other matter, he added.
But if the Justice Department does indict Mr Trump under the statute used to charge Berger, it could imperil his hopes of returning to the presidency in 2025.
Mr McClanahan told The Independent that the part of the US code which makes it a crime to “conceal,” “remove,” “mutilate,” “obliterate” or “falsify” government records contains a provision which states that anyone convicted under it “shall … be disqualified from holding any office under the United States”.
And in Mr Trump’s case, he said the ex-president’s own words could come back to haunt him.
Mr McClanahan said the rambling statement Mr Trump issued about the records transfer, in which he said his interactions with Nara had been “collaborative and respectful” while arranging “transport of boxes that contained Presidential Records in compliance with the Presidential Records Act” could be admitted against him in court as evidence that Mr Trump knew he had violated federal records laws.
He also recalled how the then-president routinely claimed that any document he touches and any conversation between him and his aides was classified.
“He's now going to have those statements thrown in his face,” he said.
