Alright, We're Gonna Do This

THREAD: Will DOJ charge Donald Trump? How strong of a case do they have against him?

— Renato Mariotti (@renato_mariotti) August 14, 2022

I read Mariotti's Politico column, and it's quite good. If you want it in Twitter form, proceed. There will be a quiz at the end.

2/ As a starting point, since the search, the #1 question that I've discussed with other former prosecutors and national security professionals is whether the purpose of the search warrant was merely to gain possession of the classified material.

— Renato Mariotti (@renato_mariotti) August 14, 2022

4/ @AshaRangappa_ is right that from a national security perspective, that is an end in itself.

We don't have the full picture of what happened yet, but based on what we do know, it looks like the primary purpose of the search was merely to secure classified material.

— Renato Mariotti (@renato_mariotti) August 14, 2022

6/ If you or I had 21 boxes of classified information, the Feds wouldn't ask for it politely.

Ironically, by treating Trump with deference before the search, the DOJ greatly strengthened a potential criminal case against Trump.

— Renato Mariotti (@renato_mariotti) August 14, 2022

8/ One tactic I used as a federal prosecutor (and is commonly used) is to serve notices on defendants in cases where willfulness is required.

If an agent hands the defendant a sheet of paper explaining his legal duty, and he keeps violating the law, you have your proof.

— Renato Mariotti (@renato_mariotti) August 14, 2022

10/ At its core, it looks like the DOJ would have a strong case against Trump.

While Trump may view these national security secrets as his "own" documents, it would be hard to convince jurors that he had a legitimate reason to keep sensitive national security info at his resort.

— Renato Mariotti (@renato_mariotti) August 14, 2022

12/ But taking classified material and concealing it from the government is a crime that is regularly charged and straightforward to prove. Federal employees are charged, convicted and sentenced to lengthy prison terms for doing what Trump did (see link): https://t.co/IY421Ru5Ac

— Renato Mariotti (@renato_mariotti) August 14, 2022

14/ Even if Trump could find aides willing to swear that this is true, I doubt it would help him here because none of the criminal statutes cited by the DOJ in the search warrant require that the documents were classified.

— Renato Mariotti (@renato_mariotti) August 14, 2022

16/ Because DOJ is not required to prove beyond a reasonable doubt that the materials in question were classified, the jury could consider Trump's "defense" but it wouldn't itself defeat the government’s claim that the information was closely held national defense information.

— Renato Mariotti (@renato_mariotti) August 14, 2022

18/ So will DOJ charge Trump? I don't know the answer to that question, although I'm convinced they would if the person in question was named John Doe instead of Donald John Trump.

They may look for a "plus factor" like obstruction, and that factor actually may be present here.

— Renato Mariotti (@renato_mariotti) August 14, 2022

20/ She may claim that she relied on Trump's false statements, or (if she lied on her own) potentially flip on him. If DOJ can establish that Trump was behind the lie, that would make a charging decision easier.

But if DOJ does charge Trump, their case looks strong. /end

— Renato Mariotti (@renato_mariotti) August 14, 2022

Kash Patel is not exactly under oath yet, but appears to be offering himself as tribute.

Did I not say yesterday that we would learn that there was no written order to declassify, and he would roll out Kash Patel as his witness that it was done verbally? I think I did. https://t.co/iYH1KD2tVX

— Ron Filipkowski 🇺🇦 (@RonFilipkowski) August 14, 2022

Remember: the issue is illegal possession of government property. Period.  Trump has admitted over and over he had the stuff.  He's also claimed he had a right to it.  Turns the whole thing into pretty much a no-brainer.

But will a jury decide it's serious enough to send an ex-POTUS to jail for?  Aye, there's the rub....

On the irrelevant topic, let's just speak to Patel's assertion (which we can safely call "bullshit"):

Can a president declassify information?

Yes, the president has the authority to declassify information. Typically, there is a process for doing that, according to Ali. It includes communicating with the Cabinet or agency head from which the information originated to ensure that declassifying it poses no risk to national security.

Trump’s team has publicly said that he declassified all the documents found in Florida before leaving the White House. But it’s unclear whether he went through a document-by-document declassification process, working with the relevant agency.

Let me break in here:  the answer is: "No."

This excuse doesn't pass muster. Top Secret documents are clearly labeled & TS/SCI material can't be removed from a SCIF. This is shades of the, "well, Trump is a political novice so he didn't know" excuses we heard early on about campaigning violations. Don't be fooled. https://t.co/lkBQPcDdef

— Joyce Alene (@JoyceWhiteVance) August 14, 2022

Granted, that excuse is subject to change without notice.  We proceed:

Can a president legally remove declassified information from the White House?

No, according to security experts. There are other laws that protect the country’s most sensitive secrets beyond how it is classified. For example, according to Aftergood, some of the intelligence and documents related to nuclear weapons can’t be declassified by the president. Aftergood said such information is protected by a different law, the Atomic Energy Act.

Another law — called “gathering, transmitting or losing defense information” — states it is illegal to remove documents related to national security from their proper place if it could risk the security of the country, no matter the classification level of the information.

“The classification is just one piece of the picture,” Aftergood said. There are other protections in the law that can make disclosure or unauthorized retention problematic or even criminal.

Removing certain property and documents from the White House would also violate the Presidential Records Act, which requires presidents to preserve official records during their time in office. The act says that records from a presidency are public property and do not belong to the president or the White House team. Violating the records act would be a civil, not a criminal, offense.

The central issue really is just the question of government property and where it should be stored.