A year and eight months after Donald Trump left the White House, carrying with him a large trove of documents that he had no right to take, the controversy is still far from being sorted out. Here are the most important questions still unanswered:
Why did he take what he took? Where did he put the materials? What did he do with them? Who, besides him, saw them and what did they do after seeing them? And, depending upon answers to those questions: how seriously – if at all – has America’s national security been harmed or threatened?
Those questions are separate from the abiding legal questions of whether Trump committed any crimes and whether he will be prosecuted for any such offenses. In federal court proceedings over the last several weeks, it has become quite clear that the Justice Department already has very persuasive evidence that Trump did break the law (probably, several laws, including mishandling documents, obstructing government investigations, or even committing espionage).
But it is not at all clear at this point whether U.S. Attorney General Merrick Garland, who is the one who will decide, will authorize prosecution of a former U.S. President. There are weighty reasons of history and policy on both sides of that decision. (Garland also has to decide, entirely separately from the documents controversy, whether to prosecute Trump for any crimes involving the violent mob attack on the Capitol on January 6, 2021.)
There is no precedent for charging a former president with crime, unless one counts the charge of treason against the former Confederate President Jefferson Davis for his role in the Civil War (he never went to trial because he was pardoned by President Andrew Johnson). President Richard Nixon was pardoned by President Gerald Ford before any charges could be filed against him for the Watergate scandal.
Since Trump left office on January 20 last year, the federal government has been attempting to retrieve the official papers and materials Trump took. So far, it has recovered about 11,000 documents, but that may not be everything that Trump took, and others might be found on one or more of his properties. While intelligence agencies are trying to find out whether documents existed anywhere other than at Trump’s Florida resort, Mar a Lago, there is no guarantee of success in that pursuit. No other property could be searched unless the Justice Department has some evidence that items will be found there.
What is to happen ultimately with the documents already recovered is known now only as to about 100 of them, but those are the most important because they contain secret government information, including some of the most important and sensitive national security secrets that the government has, including identifying U.S. spies and secret eavesdropping methods as well as secrets about foreign governments, friendly or hostile.
Those 100 documents are expected to remain under government control, and the former President will not see them or have any access to them. That seems settled, because of the recent actions of lower federal courts. Trump’s legal team still could attempt to take that issue to the Supreme Court (probably with little chance of success, because there remains no dispute among lower courts over whether he has any legal right to have or keep any materials marked classified).
So far, six judges who serve on four different lower federal courts have ruled on Trump’s attempt to get access to those 100-or-so documents. Only one of them ruled temporarily in Trump’s favor, and that judge has since backed off, though she did so only on those classified documents after being overruled by a federal appeals court.
Beyond documents marked classified, the ultimate fate of the remaining 11,000 documents depends upon a process now going forward before a federal judge in Brooklyn, N.Y., District Judge Raymond Dearie, in his role as a “Special Master.” That process is to be completed by the judge by the end of November, but the West Palm Beach, Florida, judge who has ruled sometimes in Trump’s favor, Judge Aileen Cannon, will have the power to second-guess anything the Special Master decides, perhaps prolonging that process as to the 11,000 documents.
Judge Dearie will make the initial decisions about whether Trump can make any successful claim, document by document, that he has a right to have them returned to him either because it is a paper dealing with his private consultation with a lawyer or because it was a personal item. Those are Trump’s potentially strongest claims.
Beyond those claims, Judge Dearie also will make the initial decisions on whether Trump retains some right of access to a document (but without a right to keep it) as a formal “presidential record” under a 1978 federal law, and whether as a former president he has any inherent right of the office of the presidency to have access to any official material. Those probably are Trump’s weakest claims.l’
Once those things are sorted out by the Brooklyn jurist, Judge Cannon regains control of any remaining disputes – subject to being challenged in a new appeal.
The entire process before Judge Dearie is supposed to be paid for by Trump, and it could wind up being quite expensive because it involves hiring a document-processing firm and paying any staff time, including $500 an hour to a retired judge assisting Judge Dearie in sorting the documents. Judge Dearie will submit monthly billings, with a threat of contempt of court or other sanctions if Trump does not pay promptly.
Some legal observers who are not directly advising Trump have been speculating that he might back out of the process before Judge Dearie, because some of the evidence he must submit to that judge in making his legal claims could amount to admissions that could be used against him if he is charged with a crime.
For example, the judge has told Trump’s lawyers that they must come forward with any information they have to dispute where FBI agents found documents at Mar a Lago and any claim that the government has not accounted for other items that he believes were taken there.
The Justice Department still can pursue an appeal to challenge the lower court order requiring the review being done in Judge Dearie’s court. The Department previously argued that Trump had no legal right to claim material taken to Mar a Lago, and that Justice Department teams had already sorted out anything that he had any right to claim.
So far, however, the Department has been going along with the process before Judge Dearie, and thus appears to have less interest in going to a higher court at this time.
Whether this controversy over documents ever reaches the Supreme Court is unclear at this point. If, however, Trump were charged, tried and found guilty, he could challenge the outcome as far as the Supreme Court and could then raise, among other legal defenses, his challenge to the search that led to seizure of the documents from Mar a Lago.