Writing as a guest of James Fallows, former defense official Jan Lodal outlines how subparagraph (d) of the Espionage Act should be a slam-dunk in prosecuting the XPOTUS:
This paragraph makes a straightforward action a crime: namely, failing to return classified documents if properly directed to give them back. No proof of the level of classification, or the intentions of the document holder, or the content of the documents, is required. Just a simple question, did he or she give them back or not.
This section of the Espionage Act does not require that prosecutors access or cite individual documents to prove the crime. It requires only that there were any classified documents in the boxes that Trump did not return. On that there is no doubt. It was settled by the release of the Department of Justice (DoJ) Affidavit authorizing the Mar-A-Lago document seizure.
Trump’s violation of this Subparagraph (d) of the Espionage Act could not be clearer. Unlike all other crimes being considered for prosecution, Subsection (d) requires no probing of intent or consequence. It defines as criminal a clear process violation—“failing to return” classified documents when properly asked to do so.
Given our politics and our jury system, keeping the legal actions against Trump simple is better for now. Prosecution for other offenses after getting an initial conviction will then be more likely to succeed. DOJ should take this path to reduce the risk that obfuscation and assertions of inapplicable rights and privileges by a former president could override the fragile rule of law in our constitutional democracy.
Having watched the DOJ build its case, and knowing that Attorney General Merrick Garland takes things slowly and deliberately, I expect to see this charge sooner rather than later. But I also suspect that the DOJ wants to build the most comprehensive case it can. We'll see.