On Thursday, The Washington Post published a bombshell story on new developments in the Justice Department’s investigation into classified documents found at former President Donald Trump’s Mar-a-Lago residence. If the Post reporting is accurate, Trump’s already perilous legal situation just got a lot worse.
On June 3, 2022, a senior Justice Department prosecutor and federal agents went to Mar-a-Lago to retrieve material in response to a May 2022 subpoena requiring the return of all classified documents from Trump’s residence. One day earlier, sources told the Post, two Trump employees had moved boxes of documents into a storage area, raising the question of whether Trump was hiding classified documents from the agents and keeping them in violation of the subpoena. (NBC News and MSNBC have not confirmed the Post’s report. In a statement to NBC, a Trump spokesperson called the Justice Department’s actions “nothing more than a targeted, politically motivated witch hunt against President Trump.”)
Now it seems Trump also may have misled the government and willfully evaded subpoenas.
The Post reports that Trump and his aides had allegedly practiced moving sensitive papers that Trump did not want to give back to the government, even before his office received the subpoena last year. According to the Post and The New York Times, Trump at times also reportedly kept classified documents visible in his office, and even showed them to others, raising the question of whether Trump had improperly made classified documents available for people to see who had no clearance to see the documents.
If Trump instructed his employees to move documents for the obvious purpose of concealing them from investigators — especially if they practiced doing so — then that would speak directly to Trump’s intent in this matter. In light of a grand jury subpoena requiring the return of the classified documents, he would appear to have taken brazen steps to thwart the subpoena and interfere with the Justice Department’s investigation. That intent meets the requirements for an obstruction of justice charge under 18 U.S.C. 1519.
Similarly, if Trump had really showed off classified documents to people at Mar-a-Lago, then that would add to what we already know of his legal liability. Just by retaining the documents, Trump would face liability for apparent willful possession and retention of the classified documents pertaining to national defense. Under section 793(e) of the Espionage Act, it is a criminal offense for a person without authorization to willfully retain classified documents and fail to deliver them to an officer or employee of the United States entitled to receive them.
But purposefully showing classified documents to others without authorization, in the manner reported by the Post and the Times, would go beyond retaining classified documents as prohibited by the statute. It likely constitutes an even more egregious violation of the Espionage Act under the clause prohibiting the willful communication, delivery or transmission of classified documents. Such actions go directly to the heart of both obstruction of justice and violations of the Espionage Act. These reports further distinguish the Trump classified documents investigation from the related but fundamentally different instances of President Joe Biden and former Vice President Mike Pence possessing classified documents while not in office. Upon learning they had possession of classified documents, Biden and Pence cooperated with the government’s investigations, and all evidence suggests that both retained the documents inadvertently. There is no evidence that shows any obstruction to hide documents or to interfere with government efforts to recover documents Trump, on the other hand, has fought for years — first with the National Archives and Records Administration and later with the Justice Department — to retain these documents for his own private purposes. Now it seems Trump may have also misled the government and willfully evaded subpoenas. Such actions go directly to the heart of both obstruction of justice and violations of the Espionage Act. And his defense — that he had declassified the documents merely by taking them or his claim that he could declassify them simply by thinking they were declassified — is entirely meritless. According to CNN, the National Archives has given special counsel Jack Smith “16 records that show Trump and his top advisers had knowledge of the correct declassification process while he was president.” The potential case the Justice Department could bring against Trump is becoming clearer and potentially more damning — and the possible consequences for Trump more dire. And that is before we find out what additional incriminating evidence the special counsel may have uncovered. Trump will find out in this case, as he already has in other legal matters, that the courts are unlike the political arena. His habit of lying his way out of accountability for his transgressions will not fly in the courts, and in facing the rule of law.
Norman Eisen
Norman Eisen is a co-founder and board member of Democracy Defenders Action and publisher of The Contrarian. Eisen previously served as a U.S. ambassador and in senior White House and congressional staff roles.
Fred Wertheimer
Fred Wertheimer is president of Democracy 21, a nonpartisan, nonprofit organization that works to strengthen U.S. democracy and empower citizens in the political process.
Joshua Kolb
Joshua Kolb is counsel and manager of Rapid Legal Response at State Democracy Defenders Action. 
