The Just Security Podcast

United States v. Trump: A Model Prosecution Memo for Mar-a-Lago

November 16, 2022 Just Security Episode 4
The Just Security Podcast
United States v. Trump: A Model Prosecution Memo for Mar-a-Lago
Show Notes Transcript

It’s been over three months since the FBI searched Donald Trump’s Mar-a-Lago home. We know that Trump kept classified documents after he left office. But since the search, we haven’t heard much information about what exactly the Justice Department plans to do about it. That’s pretty common. After all, investigations take time. Whatever the Justice Department’s timeline is, the investigation is likely to end in a document called a Prosecution Memorandum. It’s what prosecutors use when they evaluate whether to charge a person with a crime. And for Trump, that type of memo will be especially confidential and sensitive. It’s likely to present all the evidence, like what the FBI learned from searching Mar-a-Lago, consider what federal laws Trump might have broken, and analyze Trump’s best defenses.

Just Security’s “Model Prosecution Memo” considers the publicly available information from court documents and news reports. It also compares Trump’s alleged conduct to the entire universe of cases that DOJ has prosecuted under the same criminal laws. The memo concludes that Trump’s conduct exceeds the gravity of other former officials who the Justice Department has charged for the mishandling of classified documents. 

To discuss the Model Prosecution Memo we have Andrew Weissmann, Joyce Vance, and Ryan Goodman, who were among the memo’s authors. Andrew has served in many senior Justice Department roles, including on the core team for Special Counsel Robert Mueller, Joyce served as the former United States Attorney for the Northern District of Alabama, and Ryan is Just Security’s Co-Editor-in-Chief. 

Show Notes: 

Paras Shah: Hello and welcome to the Just Security podcast, I’m your host Paras Shah. 

It’s been over three months since the FBI searched Donald Trump’s Mar-a-Lago home. We know Trump kept classified documents after he left office. But since the search, we haven’t heard much information about what the Justice Department plans to do about it. That’s pretty common. After all, investigations take time. Whatever the Justice Department’s timeline is, the investigation is likely to end in a document called a Prosecution Memorandum. It’s what prosecutors use when they justify whether to charge a person with a crime. And for Trump, that type of memo will be especially confidential and sensitive. It’s likely to present all the evidence, like what the FBI learned from searching Mar-a-Lago, consider what federal laws Trump might have broken, and analyze Trump’s best defenses.

Of course, we don’t know what exactly a Trump prosecution memo will say. After all, we don’t have all the information that the Justice Department’s lawyers do. But our team at Just Security can take a pretty good guess. They’re former senior prosecutors, defense counsel, and legal experts – the type of people who have written these memos in the past.

The Just Security “Model Prosecution Memo” analyzes the potential federal crimes that Trump might have broken. It also considers why the government should prosecute Trump. And it compares Trump’s actions to all other cases that the Justice Department has brought for similar conduct. Finally, the memo considers potential defenses that Trump might raise and concludes that they should not stop the Justice Department from bringing charges. 

To discuss the Model Prosecution Memo we have Andrew Weissmann, Joyce Vance, and Ryan Goodman. Andrew has served in many senior Justice Department roles, including on the core team for Special Counsel Robert Mueller. Joyce served as the former United States Attorney for the Northern District of Alabama, and Ryan is Just Security’s co-editor-in-chief and a coauthor of the memo.

So, Ryan, there’s a lot that’s been reported publicly in the media about the FBI’s search of Mar-a-Lago, but there's also a lot that we don't know, and that hasn't been reported. When you're creating this memo, how do you even start to assess the facts when we don't have a lot of that information available?  

Ryan Goodman: We definitely thought very deliberately about the methodology. And one of the surprising things about this case, compared to most others, is that we do actually have quite a lot of information as to what the Justice Department's evidence is, and that's for at least a couple reasons due to litigation. So you have the litigation in the federal district court in Florida before Judge Cannon, in which the motion that was filed by Trump's team to return documents or get a special master appointed, kind of forced the Justice Department to reveal a lot of information that they have and that they're sitting on from the investigation. So that's actually quite a bit. And then a second one is media companies brought a suit before the magistrate judge, Reinhardt, asking to reveal as much as possible of the affidavit. So we also have a somewhat redacted version of the affidavit, for the search warrant.

That's quite a bunch of information. Plus, on top of that, the National Archives have responded to media leaks and to congressional inquiries by disclosing some of the pertinent facts, including communications that they had with the Trump team. So that's actually quite a lot and we rely heavily, I would say, on the information that's produced from those sources.

At the same time, we do have to also depend on investigative reporting and we're actually quite explicit about doing that, and that's from really reputable reporting from the Washington Post and the New York Times, which I would say has actually proven themselves to be highly reliable, in the Mar-a-Lago investigations. Time and again, things that they report are proven to be true by subsequent revelations from the Justice Department.

Paras: Joyce, given the facts that we have, what does the memo conclude about whether to prosecute and under which federal laws? 

Joyce Vance: Yeah, so interestingly enough, when you engage in this much criminal conduct, there are a lot of choices that prosecutors have to make, and I'll expose my bias early. I don't like to overcharge a case. I typically want a case where the evidence is strong and clear, like this evidence appears to be. I want a clean, simple indictment that doesn't give the jury a lot of opportunity to stray. 

So where the evidence is strong in the sense that there are clear charges that it applies to, I would opt for being a little bit selective about what’s being charged. The Espionage Act, this notion of retention of national defense information by someone who isn't authorized to possess it, is a very strong potential charge here.

The minute Trump stopped being president, he was no longer authorized to possess information.  And it doesn't matter whether it was classified information or not. The bell that this statute asks prosecutors to ring is national defense-related information, so it would give prosecutors the opportunity to duck the entire issue of whether or not Trump declassified the information or not. That makes it appealing. 

This particular statute, 18 U.S..C § 793, it is not something that's used frequently, but it is used and typically it's used in situations where there's a plus factor beyond mere retention of the documents, and that too seems to be a very strong argument here, both based on the extraordinarily large number of documents and their seriousness, as well as Trump's over the top efforts to obstruct justice. I think for those people who early on weren't believers and thought that the government just wanted its documents back, as we learned more and more about Trump's efforts to obstruct in this case, it became clear that this statute was a good fit.  

One potential issue, of course, is always mens rea, the state of mind that a defendant has to have. And we get a little bit nervous as prosecutors when we see “willfully” in a statute because that can have different meanings. But in this case, it's used with the general meaning. This notion that, well, a mistake or simple negligence wouldn't be enough. The government's very modest burden here is to prove that the defendant acted intentionally and with the intent to do something that the law forbids. I think that the evidence that you've laid out, Ryan, and that is in the full memo would substantiate that the government wouldn't have to prove Trump is aware of the specific law he's violating, just that he acted with the intent to do something that the law forbids and contextually the evidence would seem to be up to establishing that.

So, that I think is the heartland charge, this violation of the Espionage Act, and we are looking here really at two kinds of possible charges. One involves retention of documents, the other involves various species of obstruction. I'm a fan of this espionage charge. I might also entertain a theft of government documents charged.

I actually used this this year when I taught theft to my first year criminal law students, because that's really what we're saying Trump did here. He stole stuff that wasn't his. The elements of this crime, again, are a good fit for these facts that the property belonged to the United States, that Trump embezzled or knowingly converted it, and that he did it willfully and with the intent to deprive the government of the use of its property. Again, willfulness happens in this same sense of not needing to show specific intent to violate a law. So it also might be a good fit. It's a significant charge.

On the obstruction side of the charges, there's an 18 USC § 1519 charge where we would look at concealment of a government record with the specific intent to obstruct an investigation, and, and boy, does it look like this statute was written to fit this situation. It's a strong charge. It lines up nicely with what we know about the facts. It might require a little bit of a flesh-out of the evidence to show that Trump was behind the concealment of the documents. That seems likely on these facts, but, you know, like, all things it would need to be, I think fleshed out a little bit. 

This specific intent requirement that Trump's goal was to interfere with the investigation turns on the fact that he was aware of it and continued to withhold documents, at least at the point at which DOJ pays him a visit, and he declines to comply with the subpoena, but probably a lot earlier than that. Under this particular statute, it's enough if Trump was concealing the documents, even just contemplating that there might be an investigation.  So that's my assessment of the charges.

I just have one final caveat, I know that there are folks who think that if you're going to charge a former president for the first time, you should only do it if you can prove the most serious charges against him, which, where Trump is involved, those are insurrection related charges, without weighing in on the merits of the insurrection, the January 6th case, I'll just say I think it's important that we hold Trump accountable, that we show that the rule of law still does work. A lot of people no longer believe that, and so in a situation like this, it's bound to be fraught. There are people who will call this a political witch hunt no matter what sort of a decision is made regarding Trump.

But I think if the evidence lays out the way that we believe in the memo that it does, then Trump has to be prosecuted just like anyone else who did what he did if the rule of law is going to continue to mean anything in this country.

Paras: Andrew, this is a massive memo. A ton of work went into it. What was surprising for you in drafting it? What did you learn from this process of creating this?

Andrew Weissmann: Well, first let me just say that there is an executive summary, so it's not like reading the Mueller report where it's 400 pages. There is something relatively short and sweet that gives you –

Joyce: Wait a second. Y'all had executive summaries in the Mueller report and they were quite good, if I recall. 

Andrew: Uh, thank you. I do think they were, and we did have two separate executive summaries for both volumes. I would say just like this document, it is, full of law and facts and it's detailed and what we're trying to do here is to really create for the public what it is that the Department of Justice would be creating internally so that they can get better sense of what the facts and law are and make a judgment for themselves.

I found that process fascinating. I was surprised by the number of document retention cases that the department has brought over time, whether in delving into the compendium that has been put together and is as detailed in this prosecution memo, that so many of these cases are of lesser or equal culpability to that, that is set forth based on what we know now with respect to Donald Trump. 

And I think the import of that is because there is strong precedent for the Department to bring a criminal case against Trump. I think it's incumbent on the Department to treat Trump no better and no worse than any other defendant. And I think particularly for Merrick Garland, who is a former judge, he's going to be very closely looking at essentially case precedent here, the DOJ precedent, to make sure that he is applying the ruled law.

And I think that answers Joyce's question about should you bring stronger or wait for other charges and not bring this case because that would really be antithetical to the rule of law. There are many, many people who are charged with crimes who didn't do anything close to what Donald Trump did, and so he should hardly be given a pass because he's being investigated for other crimes that may be more serious. That doesn't mean that you shouldn't be treated, and held to account the way anyone else, so that's sort of one area. And I do think that the compendium is one of the really great things that Just Security did by putting this memo together, and under its auspices.  

The second area was something that Joyce alluded to, which is the obstruction type charges at which we go through. These are ones where, when you look closely, and I think this is where Joyce and I as, as former prosecutors are very focused on what exactly is the evidence with respect to Donald Trump. I think that is, that is something that really does, to use Joyce's term need, fleshing out, particularly with respect to a potential charge involving the grand jury subpoena that the Department of Justice served in May of this year because that grand jury subpoena was as directed to not Donald Trump personally, but rather the office of Donald J. Trump. 

So, to prove that there was obstruction or a non-compliance with that, you would not only have to show that these documents were in the possession, custody or control of that office, but you'd also have to show that Donald Trump understood that they were in the possession, custody, or control of that office in order to bring a contempt charge for failing to comply with the grand jury.  

But let me go through a third thing, which is in going through the DOJ precedent, the other thing that became clear to me, and I can't say it was a surprise, is that here were cases where the Department of Justice saw what I viewed as fairly lenient sentences for the defendants, whether we're talking about, Sandy Berger or David Petraeus, or people who were less well known, and that to me sort of cuts two ways. One, it suggests that those people were all still criminally charged, and so it couldn't be used by Donald Trump to say that those charges shouldn't be brought. But they would counsel in favor of the Department offering a lenient plea if the defendant were to plead guilty because that is consistent with what the Department has done previously, even if you disagree with it as I do in terms of how these crimes have been treated in the past, I do think that that is something that's important for people to realize is that the Department has had relatively serious cases and not throwing the book at those defendants.  

Paras: Joyce, there's a section of the memo that walks through the different defenses that Trump might assert. So, what are the strongest defenses that he might use, and what did you learn in assessing each of them? 

Joyce: So I think this is one of the real strengths of the work that Just Security has done because it's so easy to leap to conclusions. You look at the evidence, you look at the charges, and you think we are good to go. But that's not how prosecutors operate. One of the most important things that you do as a prosecutor is look critically at your case. I like to read the jury instructions. I sort of start at the end. I like to know what the judge will tell the jury. I have to prove and think very critically about that, and also to look as we do in this case, at affirmative defenses the defendant could raise. It is very easy, and I would caution against sort of brushing past these and saying, “They're silly, they're stupid, they don't work,” because the government ultimately bears the burden of proving guilt beyond a reasonable doubt.

A defendant can use issues like this to create some form of doubt and maybe convince one or more jurors to decline to vote guilty. So as a prosecutor, you have to take this sort of thing very seriously. That said, though, I'm not sure that Trump has a great defense in the mix here. When all is said and done. He does have this declassification argument that he has floated at various times, but the memo I think, does a great job of just slicing and dicing this one.

For one thing, it just doesn’t matter to the sorts of charges that we're talking about bringing, They don't hinge. On these documents being classified per se. And so even if Trump, you know, had magically declassified all of these documents with his special magic hat and magic wand on, the government would still be entitled to convict if the evidence is as strong as we've suggested it is.

Andrew:  Joyce, is that, that's what you call that, the Harry Potter?

Joyce: The Harry Potter defense. I think that's absolutely right, but it's more like the Voldemort defense, right? I mean, let's, let's not let him line up with Harry Potter here.

Andrew: Good amendment.  

Joyce: As a prosecutor, don't you want to see Trump raise this defense just so that you can make fun of it every time you stand up again? Right? I mean, this is the sort of thing that a good defense lawyer would not raise, because it gives the prosecution just too many opportunities, especially now that DOJ has locked in Kash Patel at the Grand Jury. Patel is the Trump ally, former prosecutor who went onto Trump's national security team and went over to the Department of Defense's Chief of Staff after Trump had lost the election, has remained loyal to Trump since Trump left office, and he's the one who publicly floated this story that he had seen Trump declassifying documents.

So now DOJ has given him immunity, forced him to testify in front of the grand jury. We don't know what he said and knowing what he said would be very important to fully assessing the government's case here. If Patel has come forward with some compelling case that Trump declassified, well, there, you would have that. But ultimately for these charges, classification is not something that provides a defense, and so I think the government frankly gets by with this one, but they have to make sure that the jury understands fully that classification is not critical. 

I'm similarly unimpressed by the notion that Trump would argue that classified material is presidential records or, or personal at it. It just isn't. It's generated by the intelligence community, not by Trump, and he seems to deliberately misunderstand how the Presidential Records Act works. But more to the point, even if these documents were presidential records, they were still called for by the subpoena. The subpoena asked for the turnover of anything that bared classified designations, and Andrew and I both know that when you're working with classified documents, and of course everyone has now seen the pictures from Mar-a-Lago, it's not like it's tough to see the markings, right? There's a big cover page. They're handled specially in specific folders. Every page that has classified material on it repeats the warnings. This is not the sort of thing that you could miss or mistake for personal records.   

Trump also tries to make this argument that he's entitled to these records, just like Barack Obama kept all sorts of stuff, and of course, that's untrue. The National Archives was quick to correct Trump in this regard. He might have the right to access these materials, to write. He doesn't have the right to possess them, so this defense I don't think works. 

There's also lurking in the background an assertion of executive privilege. Trump hasn't put that forward here yet, but again, it seems very unlikely to succeed because executive privilege isn't absolute. It's qualified it falls in in the face of great need for materials, which certainly would be the case in a criminal investigation. There's a little bit of precedent in a case involving a former President, Richard Nixon. It's even possible that there's a crime fraud exception that comes into play here and defeats the privilege. All of that, I think, sort of gets tied up together if this becomes a defense that Trump floats. Again, just not something that I see as being successful.  

And I think in the interests of time, I'll just laugh in passing at the suggestion that the FBI planted evidence at Mar-a-Lago. Look, this search was filmed and photographed, and that's just ridiculous and doesn't fly. 

And then maybe the last of Trump's defenses that's discussed in the prosecution memo is this advice of counsel defense. The same defense that Steve Bannon tried to rely on when he was prosecuted for contempt of Congress, and that the judge did not let him offer because the law says he can't offer it in that setting. I think it fails for Trump here for different reasons. We know from the publicly accessible information that there were lawyers who told Trump, “Hey, you gotta turn the classified stuff over. You can't hang onto it.” That's the advice of counsel that he received, and it would be utterly shocking if any lawyer provided advice that made sense that he was entitled to hang on to these documents. That's a factual determination for a jury to make if a judge permits that sort of a defense to be introduced at a trial. But it is awfully weak here, and the government would be able to put on people like former White House Council staff who would say “No, we told him he had to turn it over and explain the law to him.”  

So I think Trump goes zero for five on these defenses. But again, the caveat that Andrew and I have put forward, which is that to some extent we're flying a little bit blind, we don't know what all of the evidence DOJ has in its possession looks like. that could make defenses stronger or could make the case weaker. 

Paras: Let's just conclude with some wrap up thoughts, if any of you have them. Ryan, let's start with you. 

Ryan: One thought is, the purpose behind the memo or even not necessarily the purpose, but rather, its effect, what it can help contribute to the national conversation. I guess it, you know, as revealed by our conversation and some of the things that Andrew was saying in terms of what was surprising, it certainly helped sharpen my own thinking. And then also what Joyce is saying in terms of you can create a prima facie case, but then you have to walk through each of the defenses in a disciplined manner.

It definitely sharpened my own thinking and I think it will help in that manner, for just people in the legal community, the broader public. And it also obviously comes at a time in which, if the Justice Department proceeds down this path itself, Trump will try to call them out as being political. And I think this document shows what a balanced assessment from an outside group has produced that, in all likelihood, I would imagine, will look similar to the conclusions that the Justice Department reaches.   

Paras: Andrew, let's go to you next.  

Andrew: Sure. So, you know, in many ways, we do a lot with the media, usually in small sound bites, occasionally in longer format, but, this is an opportunity to really lay out with rigor, an area that really requires nuance. And one of the things that this prosecution memo does is really provide the public and potentially also the, Department of Justice with that nuance going through facts, law, application, and precedent, and the defenses that Joyce went over, to really create that nuance that people don't just say, you know, it's, isn't it obvious? They can really understand what goes into the decision making.  

Second, I think it helps explain the rigor that is required by the Department of Justice. In the same way that we went through this exercise, they will be going through the same exercise. obviously with more information. I think it's important for the public to understand that need for rigor on the part of the Department. 

And then the final piece is I do think that the table of prior Department of Justice cases, is an incredibly useful product for the public, the media, and the Department because it really strikes home the issue of the rule of law and the need for everyone to be treated equally.  

Paras: And Joyce, you get the last word.

Joyce: Just the position I like to be in with this crew. You know, I think it's appropriate to thank Just Security and the entire team that put so much work into this incredibly detailed document to really thank them for the work that they've done here. It's an enormous public service these days to make the law comprehensible, not just to lawyers, but also to citizens.

I hope that with the combination of the documents’ availability and this conversation that we're working to advance that public education, Because it matters. The rule of law in this country only works if people have confidence in the integrity of our legal system, and we have to be candid and acknowledge that we are at a low watermark in that regard, as people watch Trump seemingly skate past accountability again and again. So here we have a good layout of the law. I think it serves to help people understand that it can be difficult to prosecute. Not every case that we look at and think, “Wow, that person really merits prosecution.” Not every one of those cases will succeed. So for this detailed layout of the law, I think we should all be very grateful. I read this in the context of the federal principles of, of prosecution, the Bible, that prosecutors live and die by, and it tells prosecutors that they should only indict a case if they believe that they have sufficient evidence to obtain and to sustain a conviction. 

That means you've got enough evidence to convict, uh, in front of a jury, and enough evidence, and the law is on your side in a sufficient manner that you can maintain that conviction on appeal. Sometimes the appellate part of that gets lost in the mix, and I find that this memo has a lot of value because, as Andrew says, it lays out other DOJ cases extensively with a lot of detail.

So I think that this helps us understand a prosecutor's duty and the limitations on a prosecutor's role. You can only prosecute if you believe that you can obtain and sustain a conviction, and it's important to realize that no matter who Trump is and what he's done, in the context of a criminal prosecution, he has to be treated just like anyone else, no better and no worse.

That's the commitment that we make as a rule of law country. It's a commitment that Trump, in many ways, has tried to shatter, and that makes it all the more important that we double down on our commitment to it when he is sort of in the sights of the criminal justice system. I think that that's what this memo helps us understand very clearly.

Paras: Andrew, Joyce, Ryan, thank you so much. 

Andrew: Thank you. 

Joyce: Thanks for having me.

Paras: The Just Security podcast is produced in partnership with NYU's American Journalism Online program. This episode was hosted and produced by Paras Shah with editing and mixing by Ben Montoya. Our music is the song “The Parade” by Hey Pluto!

Special thanks to Ryan Goodman, Alex Kapelman, Joyce Vance, and Andrew Weissmann.

If you enjoyed this episode, please give us a five star rating on Apple Podcasts or wherever you listen.