Opinion: Trump supporters who called for the affidavit to be released should be careful what they wish for

The Justice Department released a redacted version of the affidavit on Friday and even with its heavy redactions, it makes the former president worse off in several ways.

First, just a reminder of what this document is. In order to obtain a search warrant at Mar-a-Lago, the DOJ, under the United States Constitutionhad to demonstrate “probable cause” – that is, sufficient evidence of a reasonable person conclude that the research was warranted. According to the affidavit, “there are probable grounds to believe that the locations to be searched…contain evidence, contraband, proceeds of crime, or other unlawfully possessed items…”
One of the most interesting revelations from the affidavit concerns the violation of the Espionage Act. It’s a sprawling law and one of us had written about all possible theories. The affidavit, by specifically citing section (e) of the statute, reveals the government’s theory on the matter here, at least so far. This article concerns the unauthorized possession of national defense information, knowledge that it might harm the United States or benefit a foreign nation, and willfully passing it on to persons not entitled to it, or refusing to give it to the United States. give back to those who were.

Even with redactions, the affidavit adds to our understanding not only of the legal theory, but of its factual basis. In the style of the 1950s Dragnet TV series “just the facts madam”, we learned what was inside the 15 boxes that were finally returned in January 2022 after a year of back and forth. They included “184 unique documents bearing classification marks, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET and 25 documents marked as TOP SECRET”.

We know the documents also included some marked as “derived from the monitoring of foreign communications signals by others than the intended recipients”; “information derived from human intelligence”; “derived from the collection of information authorized under the Foreign Intelligence Surveillance Act”; “not available to foreign nationals/US citizens”; and “author-controlled”, meaning the document is so sensitive that only its author can authorize further distribution – even to those who already have the highest security clearance.

All of this is certainly probable cause (and beyond) of a crime under the 793(e) theory that we first heard about in the affidavit. But of course, that was only the beginning of the alleged misconduct, as it is clear from the affidavit that the wrangling continued over additional documents that were kept. It was much uglier than Trump’s legal team’s characterization of a “cooperative” relationship. Their denial appears to have been based on the absurd argument that the president has a magic wand of automatic declassification authority.

This is of course not the law – but it is also irrelevant. This is another important revelation in the affidavit. The second footnote of the document specifically states that the mishandling of national defense information is what is being investigated. The classification often applies when national defense information is involved, but the government does not need to prove that a single line was classified to prosecute or convict Trump.

We get the flavor of this flawed defense theory (with a whiff of panic) in another new affidavit revelation: an attached May 25, 2022, letter from Trump attorney Evan Corcoran to Jay Bratt, the head of counterintelligence and export control. section of the Ministry of Justice. Corcoran focused on the argument that Trump’s conduct cannot be a violation of classification laws, but the DOJ thwarted it by not claiming that those laws are violated by the conduct mentioned in the affidavit. .

And then the DOJ counterattacked – again with new details – at paragraph 61 of the affidavit, warning that additional documents at Mar-a-Lago “were not handled appropriately or stored in a appropriate place” and demanded that they be secured. We now know from the August 8 search that another 11 sets of documents, possibly including national defense information, were recovered from Mar-a-Lago.

This brings us to the other main impact of the affidavit: on the obstruction of justice under 18 USC 1519. These details show why the affidavit establishes probable cause to believe that there was obstruction of a government investigation. The DOJ was investigating these and other Espionage Act violations, and Trump and his allies were fighting it without any legal basis.

Incidentally, there could still be additional details about the kinds of obstructions contained in the affidavit that are among the many redactions. Or there could be a stonewalling theory simply based on the Trump team’s long-standing foolish denial of document requests.

These new revelations about the probable cause of the obstruction put not only Trump but also his lawyers at risk. That includes Corcoran, who signed that ridiculous letter, but also Christina Bobb, another Trump lawyer, whom the New York Times reported signed a statement saying there was no more classified information at Mar-a-Lago in June.

Admittedly, lawyers make aggressive arguments for their clients all the time. We are both practicing lawyers familiar with this concept. But when you cross a line and facilitate possible criminal activity by your client, including making false statements of fact or law, you risk going from attorney to co-conspirator.

To be clear, nothing has come to light indicating that Trump’s lawyers knew the assurances provided to the Justice Department were false, and lawyers are routinely misled by their clients. But if we were advising Corcoran and Bobb, we would advise them to get their own lawyers after seeing this affidavit. Of course, we are not prejudging whether they will be investigated, but the signs are concerning.

We support the release of the affidavit, but we also respect careful redactions, especially those that protect witnesses. The threat of placing Trump and his supporters on a witness and allowing them to filibuster as much as possible is just too great.

If they act in good faith, those who so vehemently called for the release of the affidavit should now accept this damning evidence as the evidence they seek. Yes, there is probable cause that Trump committed several crimes in his handling of US government records. That acceptance is probably too much to hope for from the former president and the more outspoken members of his inner circle, but perhaps some more respectable members of his party’s mainstream will now see the light.

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