It’s not the crime — it’s the cover-up.
The phrase is simple enough that Donald Trump is probably familiar with it and might even intuitively understand it. Yet, the former president apparently chose not to avail himself of a straightforward move that could have helped avoid his latest indictment.
Of course, we don’t know the exact calculus special counsel Jack Smith undertook when weighing whether to charge Trump in the Mar-a-Lago documents probe. But if past Justice Department practice is any guide, then the 2024 Republican candidate’s alleged obstruction may have been what put him over the line into criminal territory in the government’s eyes.
To illustrate the point, look at the situations of President Joe Biden and former Vice President Mike Pence. Both men also had classified material during the time Smith was probing Trump, and both of them apparently cooperated with the government rather than obstruct government efforts to retrieve the material. Pence isn’t being charged, and there’s reason to think the same will be true for Biden.
As then-FBI head James Comey put it in 2016 when explaining why Hillary Clinton wasn’t charged for using her personal email during her time as secretary of state:
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.
In Trump’s case, however, some or all of those “things” may well be present, including “efforts to obstruct justice.”
To be sure, this is more than saying that a person’s criminal activity led them to be charged with crimes. That’s true in any case. But in these classified material investigations, there seems to be an easy out for people who cooperate with the authorities. While it’s possible that Trump’s dangerous handling of classified material itself would have led to his indictment either way, his allegedly obstructive conduct while under investigation may have made any potentially choice easier for Smith. This is a breaking news story. Check back for updates. Subscribe to the Deadline: Legal Blog newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump investigations and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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