The Trump Indictment in Florida Does it HOLD UP?

 

The first 31 counts against Pres. Trump are called  "Willful retention of National Security Documents"

To be sure,  this is not a charge one runs across every day.  I thought I would look at this crime and see what precedent, if any, that I could find.  I found 1 case. The case of U.S.A. v.  Harold T. Martin.  Martin according to Wikipedia ..."American computer scientist and former contractor for Booz Allen Hamilton who pleaded guilty to illegally removing 50 terabytes of data from the National Security Agency.^[4][5] The United States government reportedly failed to note or effectively respond to a number of issues with Martin's security practices and behaviors over a period of 10 to 20 years.^[6][7] The motive for the crime has been a subject of debate, investigators reportedly had difficulty determining if Martin was engaged in conventional espionage or digital hoarding since throughout his decades of work, he appeared not to have ever accessed any of the files once he removed them from government facilities

In his case, like Trump's he was subjected to a search of his home.  I went online to Google Earth to take a look at his house.  Oddly,  his house is blurred out and cannot be examined on Google Earth.  I am pretty sure his case has something to do with that. 

Like Trump (so far as we know at this point)  Martin didn't 'do' anything with the information he took.  In fact,  it is reported that he didn't even access or look at the computer files he had taken. 

In his case, he entered a plea agreement for nine years followed by 3 years supervised release. 

Martin agreed to plead guilty to Willful Retention of National Defense Information (18 U.S. Code § 793). The agreement ultimately called for nine years in prison, three years supervised release and a fine of up to $250,000, which represent the maximum punishment recommended for that crime under federal sentencing guidelines.^[47]

On July 19, 2019, Martin was sentenced to nine years in prison.^[48] At sentencing, Martin apologized before Judge Bennett, and said he recognized that taking the data was wrong. Bennett remarked that the case "has given me great pause," but agreed to impose the nine-year term negotiated between the parties, with three years subtracted for time already served.^[49]

You can find the wiki article here

If I were Trump's lawyer,  or in Trump's shoes, I would find this precedent troubling. Like Trump,  Martin didn't have to be shown to have 'misused' the information and documents.  All he did was take and possess them.  

Count 32 is a charge of Conspiracy. The government alleges Trump conspired with his aide to obstruct justice.  Conspiracy is a 'different' kind of crime.  Generally it boils down to two or more people agreeing to commit a crime and then one or both of them taking a 'substantial step' in furthering the crime.  You don't have to actually commit the crime to be guilty. It has been called 'the prosecutor's darling'  because the prosecutor doesn't even have to prove any crime was committed. It's enough if there is an agreement and someone does SOMETHING to move towards doing it. This will be difficult to defend.  Especially if Trump's aide 'turns State's evidence'.  It will be interesting to watch how the heretofore unknown Mr. Waltine (crazy name right?) Nauta holds up as the 'second' man in this drama.

Count 33 is "Withholding a document or record".  Well,  I didn't find ANY cases that dealt with this crime.  (My database is all Federal courts in all Circuits of the USA).  Same for Count 35 "Concealing a document in a federal investigation" So these two counts seem to be groudbreaking.   There are charges of providing false information.  That's a pretty well known crime.  It's the famous drop to the lawyer's classic advice... "You can get in trouble if you lie to the police...but not if you don't say anything."

As for the backdrop on all the,  "The Presidential Records Act"  Well Justice prosecuted Ollie North for his shenanigans.  The court said: "44 U.S.C. § 2201(2) defines "Presidential records" as "documentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President."

Presidential records do "not include documentary materials that are ... personal records," § 2201(2)(B), which Section 2201(3) defines as "all documentary materials, or any reasonably segregable portion thereof (so in original), of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes —

(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business."

What is mentioned in the indictment...it certainly looks like much of the document  hoard meets this definition.

Trump has mentioned Nixon in his ranting about being picked on. Here's a quote from Nixon's US Supreme Court Case. Nixon didn't want to turn over a TON of stuff from his time in the Whitehouse and the case went to the highest court.

The materials at issue consist of some 42 million pages of documents and some 880 tape recordings of conversations. Upon his resignation, appellant directed Government archivists to pack and ship the materials to him in California. This 431*431 shipment was delayed when the Watergate Special Prosecutor advised President Ford of his continuing need for the materials. At the same time, President Ford requested that the Attorney General give his opinion respecting ownership of the materials. The Attorney General advised that the historical practice of former Presidents and the absence of any governing statute to the contrary supported ownership in the appellant, with a possible limited exception.^[2] 43 Op. Atty. Gen. No. 1 (1974), App. 220-230. The Attorney General's opinion emphasized, however:

"Historically, there has been consistent acknowledgement that Presidential materials are peculiarly affected by a public interest which may justify subjecting the absolute ownership rights of the ex-President to certain limitations directly related to the character of the documents as records of government activity." Id., at 226.

From the case: 

Nixon v. Administrator of General Services, 433 US 425 - Supreme Court 1977

 So, yeah...this has been an issue before. 

SCOTUS then upheld the lower Court's decision that Nixon had to turn over his papers and stuff.  In his concurring opinion,  But Justice Rehnquist wrote a prophetic dissent.  Here's an excerpt:

The position of my Brothers POWELL and BLACKMUN is that today's opinion will not result in an impediment to future Presidential communications since this case is "unique"^[5]— appellant resigned in disgrace from the Presidency during events unique in the history of our Nation. MR. JUSTICE POWELL recognizes that this position is quite different from that of the Court. Ante, at 492-498. Unfortunately his concurring view that the authority of Congress is limited to the situation he describes does not itself change the expansive scope of the Court's opinion, and will serve as scant consolation to future Presidential advisers. For so long as the Court's opinion represents a threat to confidential communications, the concurrences of MR. JUSTICE POWELL and MR. JUSTICE BLACKMUN, I fear, are based on no more than wishful thinking.

Were the Court to advance a principled justification for affirming the judgment solely on the facts surrounding appellant's fall from office, the effect of its decision upon future Presidential communications would be far less serious. But the Court does not advance any such justification.

So,  as best I can tell in the past it was decided that a former President does NOT have a special privilege to retain his own papers if he wants them. 

Look,  I am not a Constitutional specialist,  but it surely is telling that a person who is...and who is a figure on the right, Prof. Jonathan Turley thinks Trump's in trouble:

Fox News legal commentator Jonathan Turley called the unsealed indictment against former president Donald Trump  “extremely damning” on Friday afternoon.

According to the indictment, Trump took classified documents that “included information regarding defense and weapons capabilities of both the U.S. and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for a possible retaliation in response to a foreign attack,” after he ceased to be president on January 20, 2021, acknowledged their highly confidential nature, refused to turn over the documents, and floated the idea of lying about them to federal authorities.

I think there will be a huge amount of pressure on DOJ to press the case...because the Intelligence community needs to make it crystal clear that security of national defense secrets is radioactive to violate.  

You might take a look at the Reality Winner case.

  On June 3, 2017, while employed by the military contractor Pluribus International Corporation, Winner was arrested on suspicion of leaking an intelligence report about Russian interference in the 2016 United States elections from the National Security Agency (NSA) to the news website The Intercept. The report indicated that Russian hackers accessed voter registration rolls in the United States with an email phishing operation^[9], though it was unclear whether any changes had been made.

Of course this differs from Trump a bit...he showed (allegedly) military secrets to news reporters (according to the indictment) but they did not get released to the public. In Winner's case she...

In the end, she pled out.  ".... Winner's plea agreement with prosecutors called for her to serve five years and three months in prison followed by three years of supervised release.

So,  it seems like the punishment for this kind of crime has been Prison.  Regardless of the 'good intentions' of the person who committed it or even if they never used or even looked at the material.