National Security

For experts, the evidence in two probes compels charging Trump

Two reports analyzing two different criminal investigations into Donald Trump have reached a singular conclusion: there is enough evidence to bring charges against the former president. 

Veteran prosecutors and top legal minds this week banded together to offer an assessment of two ongoing probes — one in Georgia examining Trump’s actions in the state leading up to Jan. 6, 2021, the other led by the Justice Department as it explores the mishandling of sensitive government documents at Mar-a-Lago.

In each, the attorneys found robust cases and significant legal risk for Trump, who is facing mounting trouble as he launches an early bid in the 2024 presidential race. 

“Donald Trump is facing many more legal problems than just these two probes. But the Georgia investigation of whether his election denial slipped into criminality after the 2020 election and the federal investigation [into] whether his retention, classified, and other documents at Mar-a-Lago also crossed the criminal red line are the most threatening legal peril that he faces,” Norm Eisen, counsel for Democrats in Trump’s first impeachment and an author on both reports, told The Hill. 

“They represent a one-two punch that has the potential to finally achieve the accountability that he has so often evaded in the past … I think that run is about to end, and these are the two cases that are most likely to do it.”

The nearly 500 pages of collective legal analysis finds a litany of state and federal crimes Trump may have committed, ranging from solicitation to commit election fraud, to state RICO Act violations, to the Espionage Act and obstruction of justice. 

“We conclude that Trump’s post-election conduct in Georgia leaves him at substantial risk of possible state charges predicated on multiple crimes,” a report from the Brookings Institution determined.

And in a report from Just Security, former prosecutors found additional statutes the Justice Department could weigh using as it noted any failure to charge Trump for the mishandling of records would represent treating Trump far differently than others who have faced similar charges.

“We determine there is strong precedent for the DOJ [Justice Department] to charge Trump. There are many felony cases that the DOJ pursued based on conduct that was significantly less egregious than the present set of facts in the Trump case,” they wrote. “In short, we conclude that if Trump were not charged, it would be a major deviation from how defendants are typically treated.”

The group, which includes prosecutors that worked on the Mueller report, noted that Trump’s intransigence in returning the documents — failing to fully comply with an initial request for return and a later subpoena, add to the seriousness of the case. 

“Aggravating factors in Trump’s case include the length of time of his retention of government documents, the volume of government documents, the highly sensitive nature of the documents, the number of warnings he received, his obstructive conduct, and his involving other individuals in his scheme,” they wrote. 

Following a relatively quiet period for the Justice Department in the weeks ahead of the midterms, Attorney General Merrick Garland on Friday announced a major development in its probes, handing over two of its investigations to a special counsel.

Longtime prosecutor Jack Smith will oversee both the Mar-a-Lago investigation and the portion of the Jan. 6 investigation focused at the highest levels into “whether any person or entity unlawfully interfered with the transfer of power,” Garland said.

Smith’s appointment will have no bearing on Fulton County District Attorney Fani Willis’s probe.

The investigations — as well as scrutiny of the Justice Department — are sure to pick up in the months ahead as Smith embarks on his work and the department faces key court dates.

The Justice Department is engaged in a battle to recover more than 10,000 government documents still under the review of the special master assigned to Trump’s case. Oral arguments this Tuesday in the 11th Circuit could speed that process, if the appellate court sides with department in determining no third-party review of the documents is necessary and orders them returned to prosecutors.

Also expected before the end of the year is a report from the House committee investigating the Jan. 6 attack on the Capitol, a document likely to include criminal referrals to the Justice Department in a move sure to increase pressure on the department to seriously consider some charges.

The reports seek to assure prosecutors — whether that be Willis or those among the highest ranks at Justice Department — that they have a case.

In Georgia, attorneys see a sweeping set of statutes Trump may have violated with behavior including a call to Secretary of State Brad Raffensperger asking him to “find” 11,780 votes.

Beyond solicitation to commit election fraud, Trump may also have committed intentional interference with performance of election duties, while the campaign’s false elector scheme could engage a number of state statutes on the book dealing with fraud.

In total, the report finds at least 11 charges that could be brought resulting from Trump’s efforts in Georgia.

“Generally, in Georgia, a single set of facts may trigger criminal liability under multiple statutes based on the different elements of various crimes,” they write.

In the Mar-a-Lago report, experts found three additional statutes that could be implicated beyond the three first listed in the government’s warrant.

Two mainly deal with the resistance from Trump, including criminal contempt and lying to authorities. 

But they also raise a statute that deals with conversion of government property, which carries penalties of up to 10 years in prison. 

Prosecutors would need to demonstrate that the documents were property or a thing of value belonging to the government and that a defendant converted or retained the documents for their use.

For his part, Trump has denied any wrongdoing even as he has repeatedly lashed out at the Justice Department and the FBI. He did so in his speech this week announcing his candidacy, saying, no threat “is greater than the weaponization from the system, the FBI or the DOJ.” 

The reports also walk through possible defenses from Trump — finding them largely wanting.

The Mar-a-Lago report devotes over 20 pages to potential defenses from Trump, reading like a deep dive of many of the issues already presented by Justice Department in court. One by one, the report dismisses claims from Trump that he declassified the records — something his attorneys have failed to fully assert in court and which matters little for charges that involved taking “national defense information” regardless of its classification status. It also dismisses defenses based on Trump’s claims the records are either his personal property or protected by executive privilege or that the government in any way acted improperly during its search.

“None of these potential defenses would provide a complete or effective defense,” the Just Security report concludes.

In the Georgia report, the authors argue Trump enjoys no immunity for his conduct while president, and they also dismiss the concept that the former president can’t meet the intent element necessary for a successful prosecution because he genuinely believes that he had won the election. 

“If prosecutors can prove that he did know that he lost the election—that it was not ‘stolen’ from him—that would go a long way toward clearing that criminal-intent hurdle. … The January 6 Committee has amassed evidence that Trump knew he had lost. Numerous Trump aides and lawyers have attested to this before the committee,” the report states.

“Even if, contrary to the overwhelming evidence, Trump genuinely believed that he had won, he still had no legal right to use forged electoral certificates, to pressure election officials in Georgia to ‘find 11,780 votes’ that did not exist, or to engage in other extralegal means to try to hold onto power.”

Eisen said in both probes, prosecutors are dealing with “pretty clear cut cases.”

“The theme that emerges from this is the power of the evidence,” he said. “Two sets of smoking gun on evidence, two sets of simple, very powerful legal cases. And one principle in common, and that is the principle that no one is above the law.”

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