The federal grand jury that heard evidence in the Justice Department’s investigation into former President Donald Trump’s handling of classified documents is set to reconvene this week in Washington, according to multiple people familiar with the matter. ‘investigation.
Prosecutors working for Special Counsel Jack Smith have been presenting evidence and testimony to the grand jury for months, but activity appears to have slowed in recent weeks based on courthouse observations and sources.
It’s unclear whether prosecutors are ready to seek an indictment at this point. The Justice Department would not comment on the status of the investigation.
Based on reports from NBC News and other outlets, prosecutors face two central legal questions: 1) Did Trump wrongfully retain classified documents after leaving the White House? 2) Did he subsequently obstruct the government’s efforts to recover them?
If Smith decides to indict Trump, it would be the first time a former president has been charged with a federal crime. Although Trump has previously been charged in New York with state crimes related to silent payments, the cases differ significantly.
Trump maintains he broke no laws and continues to lambast Smith and the Justice Department, dismissing the investigation as a politically motivated smear campaign. Here’s what we know and what we don’t know, and what to watch for as this unprecedented legal case unfolds.
What are the facts ?
In June 2022, federal agents traveled to the former president’s Florida home to retrieve documents from his time in the White House, at least some of which they believed to be classified. Trump’s lawyers turned over 38 classified documents to authorities and certified in writing that they had carried out a diligent search.
After visiting Mar-a-Lago and obtaining evidence that other classified documents had not been returned, Justice Department officials obtained a search warrant from a judge and FBI agents searched Mar -a-Lago in August 2022. In total, the DOJ recovered more than 300 documents with classified marks.
Trump’s attorneys presented their defense case in a letter to Congress this year, writing that the documents ended up in Florida because White House staff “simply scanned all the documents from the president’s office and other areas in boxes”. But it’s unclear whether Smith’s investigation uncovered evidence to the contrary.
What crimes could Trump be charged with?
Clues to the specific crime or crimes Smith investigated can be found in court documents, including the search warrant and an accompanying affidavit submitted by the DOJ. There are two basic categories: 1) crimes involving the handling of classified documents and 2) crimes involving obstructing investigators from retrieving those documents.
Prosecutors cited the Espionage Act, which conjures up an image of someone acting as a spy for a foreign country. But the law, enacted after the First World War, is broader. It criminalizes anyone in “unauthorized possession” of “national defense” material who retains it “voluntarily”. A series of court rulings have concluded that even if a document is not technically “classified”, someone can be charged under the law, as long as the information is “closely held” and would be useful to American adversaries.
Justice Department attorneys also raised the possibility of a crime related to obstruction of court records. But that law only applies if prosecutors can show that Trump’s intent was “to obstruct, obstruct or influence the investigation.” If Trump is charged with obstruction, it will be important to see what specific evidence Smith’s team has gathered about the former president’s intent.
Nor do prosecutors have to limit their case to the crimes explicitly described in the search warrant. A recent Washington Post report on Trump “sometimes” showing classified documents to others raises questions about whether he could be charged under an entirely different “disclosure of classified information” law, which prohibits to reveal certain classified documents to anyone not authorized to receive it.
What is Trump’s most likely defense?
Since the raid, Trump has claimed he has the power to declassify anything he wants, that he has a “standing order” to declassify documents, and that he can declassify documents just by “thinking about it.”
Although there has never been a case like this before — no former president has made such claims or been accused of such conduct — most national security lawyers say that Trump’s argument is not legally persuasive.
His broad power to declassify documents ended at noon on January 20, 2021, once he was no longer president. But let’s assume, for the sake of discussion, that Trump declassified information in his mind as he flew on the plane from Washington to Florida. Attorney Bradley Moss says he would still have needed to enforce that ruling in a meaningful way.
“A verbal command doesn’t do it. A tweet doesn’t do it. There needs to be follow-up documentation through the agencies clearly indicating what’s declassified,” Moss told NBC News. “Otherwise, anyone who has seen it should still treat it as classified.” But, Moss warned, there is no precedent for anything exactly like this case.
Many pointed to the fact that Smith could avoid a battle over whether the documents were declassified by charging under the ‘national defense’ material law, but Trump would likely continue to claim he was keeping documents he believed have the right to own. “His best defense is that he didn’t realize they were classified documents because he didn’t package them,” Moss added.
Accused of obstruction, Trump could claim that he relied on the advice of others, that he believed his team was complying with requests for the return of documents, or that others like his valet Walt Nauta, who moved the boxes, went rogue.
Where are Trump’s legal vulnerabilities?
Claims of Trump’s ignorance about how the documents got to Mar-a-Lago are undermined by the fact that he kept them, even after the government repeatedly asked for them, said Mary McCord , the former acting assistant attorney general for national security at the DOJ and an NBC News/MSNBC contributor.
“He had received a request and then a subpoena,” McCord said. “If the Archives said we needed to retrieve the documents and he returned everything immediately, we wouldn’t be talking about criminal culpability.”
But that’s not all. Recent news, first reported by CNN, of Trump speaking on tape about a classified document he kept after leaving office and wishing he had declassified it also hurts his case significantly. “It kind of locks him in,” McCord added. “It shows he knows he can’t show documents to unauthorized people.”
The recording could also be key to rebutting any defense Trump might raise about having previously declassified anything he took after leaving office.
Does Trump’s motivation for keeping the documents matter?
No. “Motivation is irrelevant,” Moss said. Even if Trump wanted to keep classified documents in Florida — not because he planned to give them to a foreign adversary, but simply as a memento of his term as president — he could still face criminal charges.
In 2017, the Justice Department accused a former defense contractor, Harold Martin, of improperly retaining national defense information. There was no evidence that Martin intended to share the documents with anyone, but the amount of information he amassed at home was described as “mind-boggling”. Former Maryland U.S. attorney Robert Hur, who prosecuted Martin, is now a special counsel investigating President Joe Biden’s handling of classified documents.
Could Trump’s case be tried before the 2024 election?
It’s hard to say, especially without an indictment. What is clear is that Trump’s legal team would fight any charges and would no doubt try to delay the trial.
First, they would likely file several pre-trial motions to have the case dismissed. And if that didn’t work, his lawyers could appeal, further delaying the process.
Trump is already facing trial in March 2024 in the secret money case in New York. Soon we may find out if he will face another one.
This article originally appeared on NBCNews.com