Jan Lodal, a longtime defense and intelligence official, on a crucial provision that deserves far more attention from press, public, and especially prosecutors than it has received.
Halberstam weighs in on the Fourth Estate and politics: why journalists cannot be charged under the espionage act, and why they have to cover these important topics unfettered without limit:
I would do a book about how and why we had gone to war in Vietnam, and about the men who were the architects of the war. The basic question behind the book was why men who were said to be the ablest to serve in government in this century had been the architects of what struck me as likely to be the worst tragedy since the Civil War.”
― David Halberstam, The Best and the Brightest
“It was only natural that the intellectuals who questioned the necessity of American purpose did not rush from Cambridge and New Haven to inflict their doubts about American power and goals upon the nation’s policies. So people like Riesman, classic intellectuals, stayed where they were while the new breed of thinkers-doers, half of academe, half of the nation’s think tanks and of policy planning, would make the trip, not doubting for a moment the validity of their right to serve, the quality of their experience. They were men who reflected the post-Munich, post-McCarthy pragmatism of the age. One had to stop totalitarianism, and since the only thing the totalitarians understood was force, one had to be willing to use force. They justified each decision to use power by their own conviction that the Communists were worse, which justified our dirty tricks, our toughness.”
― David Halberstam, The Best and the Brightest
“He had spent the last five years, he [JFK] said ruefully, running for office, and he did not know any real public officials, people to run a government, serious men. The only ones he knew, he admitted, were politicians, and if this seemed a denigration of his own kind, it was not altogether displeasing to the older man. Politicians did need men to serve, to run the government. The implication was obvious. Politicians could run Pennsylvania and Ohio, and if they could not run Chicago they could at least deliver it. But politicians run the world? What did they know about the Germans, the French, the Chinese? He needed experts for that”
― David Halberstam, The Best and the Brightest
“There is no small irony here: An administration which flaunted its intellectual superiority and its superior academic credentials made the most critical of decisions with virtually no input from anyone who had any expertise on the recent history of that part of the world, and it in no way factored in the entire experience of the French Indochina War. Part of the reason for this were the upheavals of the McCarthy period, but in part it was also the arrogance of men of the Atlantic; it was as if these men did not need to know about such a distant and somewhat less worthy part of the world. Lesser parts of the world attracted lesser men; years later I came upon a story which illustrated this theory perfectly. Jack Langguth, a writer and college classmate of mine, mentioned to a member of that Administration that he was thinking of going on to study Latin American history. The man had turned to him, his contempt barely concealed, and said, “Second-rate parts of the world for second-rate minds.”
― David Halberstam, The Best and the Brightest
“Had I been given The [Pentagon] Papers themselves that early, I would probably have become a prisoner of them—as it was, I had a good sense of the bureaucratic history [in them] as related by an expert, but I was also free to do several hundred interviews, not merely to flesh out the bureaucratic history, but to balance the pure paper history with a human history, and to relate secret decisions as they were not always set down on paper.”
"Here are some inspiring quotes from giants of the media field to give you the inspiration to get through the semester or maybe apply for that media dream job."
"I still believe that if your aim is to change the world, journalism is a more immediate short-term weapon." - Tom Stoppard
Tom Stoppard is a Czech-born British playwright and screenwriter, The Daily Telegraph ranked him 11 in their list of the "100 most powerful people in British culture." Stoppard fled Nazi occupation in Czechoslovakia as a child and settled in England in 1946. Before becoming a playwright, Stoppard worked as a journalist in Bristol. It was through writing about arts and culture that Stoppard found the world of theater. Stoppard wrote many successful plays and went on to co-write the screenplay for "Indiana Jones and the Last Crusade," although he was uncredited.
It goes to show, you don't know where a career in journalism will take you.
"In America, the president reigns for four years, and journalism governs forever and ever." - Oscar Wilde
Journalism has been referred to as the fourth estate; our democracy depends on an independent press to hold officials accountable. Irish writer Oscar Wilde knew this when he uttered the above phrase.
Wilde worked as a journalist and reviewer for an evening paper in London called The Pall Mall Gazette, from 1885-1987. He’s remembered for his novel, "The Picture of Dorian Gray," and his play, "The Importance of Being Earnest." Like many great writers, he got his start in journalism.
"Journalism allows its readers to witness history; fiction gives its readers an opportunity to live it." - John Hersey
Have you ever gotten lost in a highly literary article in The New Yorker or Rolling Stone? You might have John Hersey to thank. He helped pioneer a style of writing known as “new journalism,” which takes techniques from fiction storytelling and applies them to journalism.
Journalism is an ever-shifting and changing field and a good journalist isn’t afraid to break the rules and see what happens. It’s how we move forward.
Jan Lodal's essay goes into some ways that leaks to journalists might be covered in various subparagraphs of the Espionage Act.
This excellent American Scholar essay from ten years ago, by my friend and colleague Lincoln Caplan, goes in great detail into this "leaks vs espionage" point. Its argument is of course not directly connected to the Donald Trump case, but I highly recommend it on the larger issues. It is here:
An overly simple summary: Linc Caplan goes into the tangled history of the Espionage Act itself, and argues that he thinks it would be a major mistake to bring interactions with journalists under its provisions. (In his essay, Jan Lodal mentions some leaks to and interactions with journalists, which he says were damaging in intelligence terms but were never prosecuted.)
Thanks for the great guest posting, and shades of nixonian-style corruption: the GOP keeps putting their top damaged narcissists into office!
Who remembers The Best and the Brightest by David Halberstam, a seminal work about the real nature of how politics goes.
How we got here:
David Halberstam, The Best and the Brightest:
“...an aristocracy come to power, convinced of its own disinterested quality, believing itself above both petty partisan interest and material greed. The suggestion that this also meant the holding and wielding of power was judged offensive by these same people, who preferred to view their role as service, though in fact this was typical of an era when many of the great rich families withdrew from the new restless grab for money of a modernizing America, and having already made their particular fortunes, turned to the public arena as a means of exercising power. They were viewed as reformers, though the reforms would be aimed more at the newer seekers of wealth than at those who already held it. (“First-generation millionaires,” Garry Wills wrote in Nixon Agonistes, “give us libraries, second-generation millionaires give us themselves.”)”
“[David Riesman] had made a hobby of studying the American Civil War and he had always been disturbed by the passions which it had unleashed in the country, the tensions and angers just below the surface, the thin fabric of the society which held it all together, so easy to rend.”
“The byline is a replacement for many other things, not the least of them money. If someone ever does a great psychological profile of journalism as a profession, what will be apparent will be the need for gratification—if not instant, then certainly relatively immediate. Reporters take sustenance from their bylines; they are a reflection of who you are, what you do, and why, to an uncommon degree, you exist. ... A journalist always wonders: If my byline disappears, have I disappeared as well?”
Thanks, yes, I remember that passage from 'Best and Brightest.' And the line from Garry Wills as well. So much is recurring in the patterns of our nation.
I worked for over 10 years in state criminal court, which gave me insight into the issue of intent. My thought is this: Although we may think of intent as the reason why Trump kept these documents, let's look at what's obvious: How hard is it to prove criminal intent when Trump refused to return them, not once but seven times? And after 4 years in the presidency, Trump knew the drill - read the documents, give them to the Archives, don't keep them, rip them up or throw them down a toilet. He knew what he was doing when he took all those boxes when he left the WH; he knew he wasn't supposed to take them, but he did so, and many other people in his employ also knew. The fact that top secret documents were mixed in with newspapers and non-classified documents can easily indicate an attempt to conceal them.
Thanks to many readers who have already written in with responses. Keep them coming!
I have addressed a few of them that are within the realm of "things I sort of know about." I have invited Jan Lodal to respond on points directly about his Espionage Act arguments.
FOR INSTANCE, here is a reply I received directly from a longtime Congressional staffer, with extensive defense-policy experience. He quotes this part of Jan Lodal's argument:
>>And the final Subparagraph (f) requires proving both “gross negligence,” always difficult, and that the perpetrator not only mishandled documents but also “failed to report” the mishandling to his “superior officer.” No one was “superior” to the President of the United States, so his behavior couldn’t meet this test. <<
And responds this way:
>>Not necessarily. Beginning 20 January 2021 at noon, Trump became a private citizen and superior to no one in the national security structure. All actions after that date would be culpable under subparagraph (f). And based on what we already know about the lax security and comings and goings of foreign nationals at Mar a Lago, gross negligence could be provable.<<
I'm adding this as part of the discussion. Thanks to all.
Thanks to Jan Lodal and you for sharing this detailed explanation of the Espionage Act with the different degrees to which it is applicable in light of the TFG's actions...
Alas, I have concluded that he is treating this predicament in the same way that he treated the banks and others who loaned him money back in the 80's to build his casinos in Atlantic City. When his abject failure to operate these businesses successfully left him on the verge of total bankruptcy, he apparently held his creditors at bay by threatening to take them down with him. They ultimately acceded to this pressure and Trump came out of it relatively whole.
If the primary goal of the IC is the recuperation of very sensitive materials plus a damage assessment concerning the substance as well as sources and methods, then I expect that TFG will continue to hunker down without disclosing the final disposition of these documents whether or not they have already been returned... and he will implicitly (or perhaps openly) threaten to bring the house down on all our heads if he is indicted.
UPDATE: I forgot to add that he can see a light at the end of the tunnel via a GOP victory in the House in November... January 6 and other investigations be damned! In some ways it is worse than a pending default on a debt because that track leads to a precipice. It's frankly crazy to say this, but might the DA in Georgia or other parties be encouraged to demure if the risk to national security from the mishandling of secrets was sufficiently acute?
Well put, especially in the linkage between Trump's decades-long "business" record, and his approach to "government." To him it seems all to have been all one continuum. With the results that you lay out.
Regarding the former guy, the errors go back at least 5 years, and it is these past errors that are so consequential in prosecuting this case effectively.
First error: setting the stage for tfg's rise. The US government has a long history of lying to its allies and to the American public. Many of these lies concern national security, but many concern the effects of money in politics - which has resulted in the acceleration of income inequality and with it, frustration with "business as usual."
Second error: removing any meaningful competition to tfg's rise. The public had clearly had enough of "business as usual" in D.C., and as we now know, Bernie Sanders' rising popularity in the 2016 primaries was thwarted at every turn by the Democratic machine. Tfg happily picked up a majority of Bernie's talking points and ran with them. In terms of integrity, character, and virtually every measure of a leader Bernie is the exact opposite of the crook who ended up sitting behind the desk, but they both represented a radical departure from "business as usual." If the Democrats had behaved honorably, there is a strong case to be made that Bernie could have easily won both the primary and the general election.
Third error: not taking tfg or his rising popularity seriously enough. Like many Americans, I was completely shocked the morning after the election. How could this have happened? I think two words apply here: arrogance & complacency.
Fourth error: huffing & puffing about impeachment before tfg even took the oath of office. Democrats immediately began crying "We got him!" and have been chanting the same thing ever since - month after month, year after year. Even for those of us who desperately want to see this wannabe despot neutered and incarcerated, the "We got him!" mantra got old a long, long time ago.
Fifth error: the 22 month drum roll known as the Mueller investigation, and the constant stream of "We got him!" announcements. More cries of "Wolf!"
Sixth error: two impeachments that were conducted knowing full well there would never be a conviction. The Dems weren't wrong to impeach, but the Reps were intent on "payback" for their failure to convict Clinton. I agree with most Democrats that Clinton's impeachment was moronic, unwarranted, and clearly motivated primarily by politics and not a search for justice. However, he did lie to investigators, and for that he deserved to be removed from office. Lying to investigators is not the behavior we expect from a president. Had he been convicted, Gore would have become president, he would have carried on Clinton's policies, and he would have had a much better chance of winning the next election. That would have saved us from all the errors of the next 8 years. Most importantly, the Republicans in the Senate would have had much less precedent to excuse their blatantly political refusal to convict.
Of course the greatest error was committed by the American public, who were so easily duped into buying the snake oil tfg guy was selling. But this error was aided and abetted by an abject refusal of Democrats and Republicans alike to clean their own houses and maintain the high levels of integrity we expect of our leaders.
And so here we are, floundering about, wondering how to hold an overwhelmingly corrupt person to account for crimes that are also overwhelmingly clear and unambiguous. The problem is that, due to all of the above errors, we are standing on shaky ground. We have cried "wolf!" far too many times to be taken seriously now. No matter how strong our case, no matter how deeply consequential the outcome, we have painted ourselves into a corner and there are simply no good options.
Thank you for this detailed rendering of how-we-got-here. I agree with the main themes of your analysis. For "arc of moral universe" reasons, I would like to hope that your final lines prove inaccurate. But I have no strong way to argue that now.
I realized after I wrote this that it does sound rather hopeless, but I'm guessing it represents the frustration so many of us are feeling about this guy constantly evading justice and accountability. Each time he dodges a summons, he's back to taunt us while he rallies his followers to once again see him as the gladiator who is fighting "the man" on their behalf. Those who are impatient with AG Garland and others need to accept the fact that we need a virtually bulletproof case next time or it's likely to be game over. Mr. Lodal may have presented just such a case - let's hope so. Many of us have grown weary and terrified in our anticipation.
Thanks for this article. It seems there is an immediate and slam-dunk basis upon which Trump could be arrested and convicted: clause (d). Yet no action by DOJ so far. What then are they waiting for? Somehow I fear nothing will be done.
It's been said that there are probably more boxes stashed at Bedminster. So there's that. And because this involves a former president, being thorough and not rushing things is a good idea. Trump isn't going anywhere, and his crazypants ranting is taking a toll on his standing as a presidential candidate (we all know he intends to run). Polls are showing that independents are jumping ship.
Thank you Tom. Yes, the boundary between "prudence / restraint" on the one hand, and "paralysis / fecklessness" on the other, is an important one. We all *assume* that the prosecutors are aware of the danger of excessive restraint.
The Mueller example — where he apparently let Bill Barr shamelessly mis-characterize his report as clearing Trump — is there to learn from. As, on the other side, is the impressively unafraid approach of the Jan 6 committee (with the difference, of course, that they're not presenting criminal prosecutions, which requires a much more rigorous standard.)
One great value of Jan Lodal's piece is its realism about what can and cannot be sold to a jury in a criminal trial, and why the "process violation" he is talking about avoids a lot of those pitfalls.
It's apparent that justice authorities in different jurisdictions drag their feet investigating Donald Trump's criminal behavior. Justice authorities in federal, states, and local jurisdictions have flat-out declined—Alvin Bragg, the current Manhattan DA, for example—prosecuting Trump's criminal behavior. (DA Bragg's refusal to prosecute led immediately to the resignations of two senior prosecutors in the Manhattan DA's office. A red flag about the prosecutorial commitment of the DA.)
One explanation, excuse or rationalization given for not moving quickly is that Trump WAS the president. I doubt those who say prosecuting a former president would stress and risk further dividing America. Or, prosecuting a former president would seriously damage the esteem, respect for , and the strength of authority of the office of the president. Despite Trump's abominable behavior in so many ways while he represented the office of the president, I do not hold the office in less esteem. I hold the person who occupied the office to be less of a moral, ethical, law-abiding and American than I did prior to his ascension to the office.
Approaching twenty months since Trump's presidency ended my trust and faith in the integrity of those justice officials entrusted at the federal, state, and city to carry out their duties based on the law. The rule of law has been tarnished by Trump and perhaps by justice officials as well.
Will the permissible authorities listen to and act on Mr. Lodal's analysis and recommendation about subparagraph (d) of the Espionage Act of 1917, as they should?
Thanks for this. I understand and agree with your point that it's not a threat to the integrity of the *office,* to seek accountability for a previous office-holder who himself attacked that integrity. This is sort of what I was arguing in a magazine piece just as Biden took office, which the "fact pattern" was nothing like what we know it to be today. (No Jan 6 commission; no subpoenas and search warrants; etc.) That piece was here https://www.theatlantic.com/magazine/archive/2021/01/how-biden-should-investigate-trump/617260/
As mentioned below, I'll look forward to more from Jan Lodal on these fronts.
Is it possible that the problem with 28 USC sec. 793(d) is the predicate phrase at the start of the subsection: “ Whoever, lawfully having possession of…any document…relating to the national defense…”. At the time that the demands for return of the documents were made, Trump was no longer lawfully having possession (note the statute doesn’t use the past tense), of the classified documents because he was not the President. If I’m right, the government will not have proved an element of its case under subsection (d), or at least arguably will not have proved it. Subsections (a) through (c) apply to any goober so the government should indict on those subsections, too, just in case the fact of current lawful possession is found by the 11th Cir. on appeal to be an element of the case under subsection (d). (Keep in mind the 11th is objectively a GOP circuit. Granted, the DOJ might bring the case in the DC District Court such that any appeal is to the DC Cir.—and I think there’s a statute that provides that the DC court is an appropriate venue no matter where the defendant resides but I’m too lazy tonight to look that up—it’s still a possible reading of the statute.) Thus it’s possible the DOJ has decided that filing on (d) alone is risky and are loath to chance a loss which would then give Trump the benefits of double jeopardy.
It’s also possible that if current lawful possession is alleged by the DOJ, which is a fact allegation as opposed to a legal conclusion, the DOJ might have pleaded itself out of a case based on subsections (a) through (c).
I may be all wrong. There may be a case out there saying otherwise. I haven’t litigated in the Federal courts in 30 years so don’t lay money on my theory. But it seems plausible.
Thanks very much for this detailed and informed speculation, and for the responses it has provoked. I am not equipped myself to engage on the merits. But I believe that Jan Lodal will be able to do so at some point.
I imagine the former president and his lawyers would prefer to avoid the consequences of a claim that he was not legally in possession of the government documents in question at the time the government demanded their return merely to avoid being found guilty of failing to return those same government documents.
"Having" is an example of the present continuous aka present progressive tense of "to have" and describes an action occurring at present or in progress. However, "willfully retains the same and fails to deliver it on demand" seems to anticipate the retention of documents beyond any term of their lawful possession.
Halberstam weighs in on the Fourth Estate and politics: why journalists cannot be charged under the espionage act, and why they have to cover these important topics unfettered without limit:
I would do a book about how and why we had gone to war in Vietnam, and about the men who were the architects of the war. The basic question behind the book was why men who were said to be the ablest to serve in government in this century had been the architects of what struck me as likely to be the worst tragedy since the Civil War.”
― David Halberstam, The Best and the Brightest
“It was only natural that the intellectuals who questioned the necessity of American purpose did not rush from Cambridge and New Haven to inflict their doubts about American power and goals upon the nation’s policies. So people like Riesman, classic intellectuals, stayed where they were while the new breed of thinkers-doers, half of academe, half of the nation’s think tanks and of policy planning, would make the trip, not doubting for a moment the validity of their right to serve, the quality of their experience. They were men who reflected the post-Munich, post-McCarthy pragmatism of the age. One had to stop totalitarianism, and since the only thing the totalitarians understood was force, one had to be willing to use force. They justified each decision to use power by their own conviction that the Communists were worse, which justified our dirty tricks, our toughness.”
― David Halberstam, The Best and the Brightest
“He had spent the last five years, he [JFK] said ruefully, running for office, and he did not know any real public officials, people to run a government, serious men. The only ones he knew, he admitted, were politicians, and if this seemed a denigration of his own kind, it was not altogether displeasing to the older man. Politicians did need men to serve, to run the government. The implication was obvious. Politicians could run Pennsylvania and Ohio, and if they could not run Chicago they could at least deliver it. But politicians run the world? What did they know about the Germans, the French, the Chinese? He needed experts for that”
― David Halberstam, The Best and the Brightest
“There is no small irony here: An administration which flaunted its intellectual superiority and its superior academic credentials made the most critical of decisions with virtually no input from anyone who had any expertise on the recent history of that part of the world, and it in no way factored in the entire experience of the French Indochina War. Part of the reason for this were the upheavals of the McCarthy period, but in part it was also the arrogance of men of the Atlantic; it was as if these men did not need to know about such a distant and somewhat less worthy part of the world. Lesser parts of the world attracted lesser men; years later I came upon a story which illustrated this theory perfectly. Jack Langguth, a writer and college classmate of mine, mentioned to a member of that Administration that he was thinking of going on to study Latin American history. The man had turned to him, his contempt barely concealed, and said, “Second-rate parts of the world for second-rate minds.”
― David Halberstam, The Best and the Brightest
“Had I been given The [Pentagon] Papers themselves that early, I would probably have become a prisoner of them—as it was, I had a good sense of the bureaucratic history [in them] as related by an expert, but I was also free to do several hundred interviews, not merely to flesh out the bureaucratic history, but to balance the pure paper history with a human history, and to relate secret decisions as they were not always set down on paper.”
― David Halberstam, The Best and the Brightest
Reynolds School of Journalism staff
"Here are some inspiring quotes from giants of the media field to give you the inspiration to get through the semester or maybe apply for that media dream job."
"I still believe that if your aim is to change the world, journalism is a more immediate short-term weapon." - Tom Stoppard
Tom Stoppard is a Czech-born British playwright and screenwriter, The Daily Telegraph ranked him 11 in their list of the "100 most powerful people in British culture." Stoppard fled Nazi occupation in Czechoslovakia as a child and settled in England in 1946. Before becoming a playwright, Stoppard worked as a journalist in Bristol. It was through writing about arts and culture that Stoppard found the world of theater. Stoppard wrote many successful plays and went on to co-write the screenplay for "Indiana Jones and the Last Crusade," although he was uncredited.
It goes to show, you don't know where a career in journalism will take you.
"In America, the president reigns for four years, and journalism governs forever and ever." - Oscar Wilde
Journalism has been referred to as the fourth estate; our democracy depends on an independent press to hold officials accountable. Irish writer Oscar Wilde knew this when he uttered the above phrase.
Wilde worked as a journalist and reviewer for an evening paper in London called The Pall Mall Gazette, from 1885-1987. He’s remembered for his novel, "The Picture of Dorian Gray," and his play, "The Importance of Being Earnest." Like many great writers, he got his start in journalism.
"Journalism allows its readers to witness history; fiction gives its readers an opportunity to live it." - John Hersey
Have you ever gotten lost in a highly literary article in The New Yorker or Rolling Stone? You might have John Hersey to thank. He helped pioneer a style of writing known as “new journalism,” which takes techniques from fiction storytelling and applies them to journalism.
Journalism is an ever-shifting and changing field and a good journalist isn’t afraid to break the rules and see what happens. It’s how we move forward.
https://www.unr.edu/nevada-today/news/2017/nine-media-quotes-journalism
As an extra discussion point:
Jan Lodal's essay goes into some ways that leaks to journalists might be covered in various subparagraphs of the Espionage Act.
This excellent American Scholar essay from ten years ago, by my friend and colleague Lincoln Caplan, goes in great detail into this "leaks vs espionage" point. Its argument is of course not directly connected to the Donald Trump case, but I highly recommend it on the larger issues. It is here:
https://theamericanscholar.org/leaks-and-consequences/
An overly simple summary: Linc Caplan goes into the tangled history of the Espionage Act itself, and argues that he thinks it would be a major mistake to bring interactions with journalists under its provisions. (In his essay, Jan Lodal mentions some leaks to and interactions with journalists, which he says were damaging in intelligence terms but were never prosecuted.)
Check it out.
Thanks for the great guest posting, and shades of nixonian-style corruption: the GOP keeps putting their top damaged narcissists into office!
Who remembers The Best and the Brightest by David Halberstam, a seminal work about the real nature of how politics goes.
How we got here:
David Halberstam, The Best and the Brightest:
“...an aristocracy come to power, convinced of its own disinterested quality, believing itself above both petty partisan interest and material greed. The suggestion that this also meant the holding and wielding of power was judged offensive by these same people, who preferred to view their role as service, though in fact this was typical of an era when many of the great rich families withdrew from the new restless grab for money of a modernizing America, and having already made their particular fortunes, turned to the public arena as a means of exercising power. They were viewed as reformers, though the reforms would be aimed more at the newer seekers of wealth than at those who already held it. (“First-generation millionaires,” Garry Wills wrote in Nixon Agonistes, “give us libraries, second-generation millionaires give us themselves.”)”
“[David Riesman] had made a hobby of studying the American Civil War and he had always been disturbed by the passions which it had unleashed in the country, the tensions and angers just below the surface, the thin fabric of the society which held it all together, so easy to rend.”
reporting the news:
“The byline is a replacement for many other things, not the least of them money. If someone ever does a great psychological profile of journalism as a profession, what will be apparent will be the need for gratification—if not instant, then certainly relatively immediate. Reporters take sustenance from their bylines; they are a reflection of who you are, what you do, and why, to an uncommon degree, you exist. ... A journalist always wonders: If my byline disappears, have I disappeared as well?”
― David Halberstam, The Best and the Brightest
Thanks, yes, I remember that passage from 'Best and Brightest.' And the line from Garry Wills as well. So much is recurring in the patterns of our nation.
agree
we all lived through that era
I worked for over 10 years in state criminal court, which gave me insight into the issue of intent. My thought is this: Although we may think of intent as the reason why Trump kept these documents, let's look at what's obvious: How hard is it to prove criminal intent when Trump refused to return them, not once but seven times? And after 4 years in the presidency, Trump knew the drill - read the documents, give them to the Archives, don't keep them, rip them up or throw them down a toilet. He knew what he was doing when he took all those boxes when he left the WH; he knew he wasn't supposed to take them, but he did so, and many other people in his employ also knew. The fact that top secret documents were mixed in with newspapers and non-classified documents can easily indicate an attempt to conceal them.
Thanks to many readers who have already written in with responses. Keep them coming!
I have addressed a few of them that are within the realm of "things I sort of know about." I have invited Jan Lodal to respond on points directly about his Espionage Act arguments.
FOR INSTANCE, here is a reply I received directly from a longtime Congressional staffer, with extensive defense-policy experience. He quotes this part of Jan Lodal's argument:
>>And the final Subparagraph (f) requires proving both “gross negligence,” always difficult, and that the perpetrator not only mishandled documents but also “failed to report” the mishandling to his “superior officer.” No one was “superior” to the President of the United States, so his behavior couldn’t meet this test. <<
And responds this way:
>>Not necessarily. Beginning 20 January 2021 at noon, Trump became a private citizen and superior to no one in the national security structure. All actions after that date would be culpable under subparagraph (f). And based on what we already know about the lax security and comings and goings of foreign nationals at Mar a Lago, gross negligence could be provable.<<
I'm adding this as part of the discussion. Thanks to all.
Thanks to Jan Lodal and you for sharing this detailed explanation of the Espionage Act with the different degrees to which it is applicable in light of the TFG's actions...
Alas, I have concluded that he is treating this predicament in the same way that he treated the banks and others who loaned him money back in the 80's to build his casinos in Atlantic City. When his abject failure to operate these businesses successfully left him on the verge of total bankruptcy, he apparently held his creditors at bay by threatening to take them down with him. They ultimately acceded to this pressure and Trump came out of it relatively whole.
If the primary goal of the IC is the recuperation of very sensitive materials plus a damage assessment concerning the substance as well as sources and methods, then I expect that TFG will continue to hunker down without disclosing the final disposition of these documents whether or not they have already been returned... and he will implicitly (or perhaps openly) threaten to bring the house down on all our heads if he is indicted.
UPDATE: I forgot to add that he can see a light at the end of the tunnel via a GOP victory in the House in November... January 6 and other investigations be damned! In some ways it is worse than a pending default on a debt because that track leads to a precipice. It's frankly crazy to say this, but might the DA in Georgia or other parties be encouraged to demure if the risk to national security from the mishandling of secrets was sufficiently acute?
Well put, especially in the linkage between Trump's decades-long "business" record, and his approach to "government." To him it seems all to have been all one continuum. With the results that you lay out.
Regarding the former guy, the errors go back at least 5 years, and it is these past errors that are so consequential in prosecuting this case effectively.
First error: setting the stage for tfg's rise. The US government has a long history of lying to its allies and to the American public. Many of these lies concern national security, but many concern the effects of money in politics - which has resulted in the acceleration of income inequality and with it, frustration with "business as usual."
Second error: removing any meaningful competition to tfg's rise. The public had clearly had enough of "business as usual" in D.C., and as we now know, Bernie Sanders' rising popularity in the 2016 primaries was thwarted at every turn by the Democratic machine. Tfg happily picked up a majority of Bernie's talking points and ran with them. In terms of integrity, character, and virtually every measure of a leader Bernie is the exact opposite of the crook who ended up sitting behind the desk, but they both represented a radical departure from "business as usual." If the Democrats had behaved honorably, there is a strong case to be made that Bernie could have easily won both the primary and the general election.
Third error: not taking tfg or his rising popularity seriously enough. Like many Americans, I was completely shocked the morning after the election. How could this have happened? I think two words apply here: arrogance & complacency.
Fourth error: huffing & puffing about impeachment before tfg even took the oath of office. Democrats immediately began crying "We got him!" and have been chanting the same thing ever since - month after month, year after year. Even for those of us who desperately want to see this wannabe despot neutered and incarcerated, the "We got him!" mantra got old a long, long time ago.
Fifth error: the 22 month drum roll known as the Mueller investigation, and the constant stream of "We got him!" announcements. More cries of "Wolf!"
Sixth error: two impeachments that were conducted knowing full well there would never be a conviction. The Dems weren't wrong to impeach, but the Reps were intent on "payback" for their failure to convict Clinton. I agree with most Democrats that Clinton's impeachment was moronic, unwarranted, and clearly motivated primarily by politics and not a search for justice. However, he did lie to investigators, and for that he deserved to be removed from office. Lying to investigators is not the behavior we expect from a president. Had he been convicted, Gore would have become president, he would have carried on Clinton's policies, and he would have had a much better chance of winning the next election. That would have saved us from all the errors of the next 8 years. Most importantly, the Republicans in the Senate would have had much less precedent to excuse their blatantly political refusal to convict.
Of course the greatest error was committed by the American public, who were so easily duped into buying the snake oil tfg guy was selling. But this error was aided and abetted by an abject refusal of Democrats and Republicans alike to clean their own houses and maintain the high levels of integrity we expect of our leaders.
And so here we are, floundering about, wondering how to hold an overwhelmingly corrupt person to account for crimes that are also overwhelmingly clear and unambiguous. The problem is that, due to all of the above errors, we are standing on shaky ground. We have cried "wolf!" far too many times to be taken seriously now. No matter how strong our case, no matter how deeply consequential the outcome, we have painted ourselves into a corner and there are simply no good options.
Thank you for this detailed rendering of how-we-got-here. I agree with the main themes of your analysis. For "arc of moral universe" reasons, I would like to hope that your final lines prove inaccurate. But I have no strong way to argue that now.
I realized after I wrote this that it does sound rather hopeless, but I'm guessing it represents the frustration so many of us are feeling about this guy constantly evading justice and accountability. Each time he dodges a summons, he's back to taunt us while he rallies his followers to once again see him as the gladiator who is fighting "the man" on their behalf. Those who are impatient with AG Garland and others need to accept the fact that we need a virtually bulletproof case next time or it's likely to be game over. Mr. Lodal may have presented just such a case - let's hope so. Many of us have grown weary and terrified in our anticipation.
Thanks for this article. It seems there is an immediate and slam-dunk basis upon which Trump could be arrested and convicted: clause (d). Yet no action by DOJ so far. What then are they waiting for? Somehow I fear nothing will be done.
It's been said that there are probably more boxes stashed at Bedminster. So there's that. And because this involves a former president, being thorough and not rushing things is a good idea. Trump isn't going anywhere, and his crazypants ranting is taking a toll on his standing as a presidential candidate (we all know he intends to run). Polls are showing that independents are jumping ship.
Thank you Tom. Yes, the boundary between "prudence / restraint" on the one hand, and "paralysis / fecklessness" on the other, is an important one. We all *assume* that the prosecutors are aware of the danger of excessive restraint.
The Mueller example — where he apparently let Bill Barr shamelessly mis-characterize his report as clearing Trump — is there to learn from. As, on the other side, is the impressively unafraid approach of the Jan 6 committee (with the difference, of course, that they're not presenting criminal prosecutions, which requires a much more rigorous standard.)
One great value of Jan Lodal's piece is its realism about what can and cannot be sold to a jury in a criminal trial, and why the "process violation" he is talking about avoids a lot of those pitfalls.
It's apparent that justice authorities in different jurisdictions drag their feet investigating Donald Trump's criminal behavior. Justice authorities in federal, states, and local jurisdictions have flat-out declined—Alvin Bragg, the current Manhattan DA, for example—prosecuting Trump's criminal behavior. (DA Bragg's refusal to prosecute led immediately to the resignations of two senior prosecutors in the Manhattan DA's office. A red flag about the prosecutorial commitment of the DA.)
One explanation, excuse or rationalization given for not moving quickly is that Trump WAS the president. I doubt those who say prosecuting a former president would stress and risk further dividing America. Or, prosecuting a former president would seriously damage the esteem, respect for , and the strength of authority of the office of the president. Despite Trump's abominable behavior in so many ways while he represented the office of the president, I do not hold the office in less esteem. I hold the person who occupied the office to be less of a moral, ethical, law-abiding and American than I did prior to his ascension to the office.
Approaching twenty months since Trump's presidency ended my trust and faith in the integrity of those justice officials entrusted at the federal, state, and city to carry out their duties based on the law. The rule of law has been tarnished by Trump and perhaps by justice officials as well.
Will the permissible authorities listen to and act on Mr. Lodal's analysis and recommendation about subparagraph (d) of the Espionage Act of 1917, as they should?
Thanks for this. I understand and agree with your point that it's not a threat to the integrity of the *office,* to seek accountability for a previous office-holder who himself attacked that integrity. This is sort of what I was arguing in a magazine piece just as Biden took office, which the "fact pattern" was nothing like what we know it to be today. (No Jan 6 commission; no subpoenas and search warrants; etc.) That piece was here https://www.theatlantic.com/magazine/archive/2021/01/how-biden-should-investigate-trump/617260/
As mentioned below, I'll look forward to more from Jan Lodal on these fronts.
Sticking my neck out, but here goes:
Is it possible that the problem with 28 USC sec. 793(d) is the predicate phrase at the start of the subsection: “ Whoever, lawfully having possession of…any document…relating to the national defense…”. At the time that the demands for return of the documents were made, Trump was no longer lawfully having possession (note the statute doesn’t use the past tense), of the classified documents because he was not the President. If I’m right, the government will not have proved an element of its case under subsection (d), or at least arguably will not have proved it. Subsections (a) through (c) apply to any goober so the government should indict on those subsections, too, just in case the fact of current lawful possession is found by the 11th Cir. on appeal to be an element of the case under subsection (d). (Keep in mind the 11th is objectively a GOP circuit. Granted, the DOJ might bring the case in the DC District Court such that any appeal is to the DC Cir.—and I think there’s a statute that provides that the DC court is an appropriate venue no matter where the defendant resides but I’m too lazy tonight to look that up—it’s still a possible reading of the statute.) Thus it’s possible the DOJ has decided that filing on (d) alone is risky and are loath to chance a loss which would then give Trump the benefits of double jeopardy.
It’s also possible that if current lawful possession is alleged by the DOJ, which is a fact allegation as opposed to a legal conclusion, the DOJ might have pleaded itself out of a case based on subsections (a) through (c).
I may be all wrong. There may be a case out there saying otherwise. I haven’t litigated in the Federal courts in 30 years so don’t lay money on my theory. But it seems plausible.
Thanks very much for this detailed and informed speculation, and for the responses it has provoked. I am not equipped myself to engage on the merits. But I believe that Jan Lodal will be able to do so at some point.
I imagine the former president and his lawyers would prefer to avoid the consequences of a claim that he was not legally in possession of the government documents in question at the time the government demanded their return merely to avoid being found guilty of failing to return those same government documents.
It’s the DOJ that has the burden of proof.
"Having" is an example of the present continuous aka present progressive tense of "to have" and describes an action occurring at present or in progress. However, "willfully retains the same and fails to deliver it on demand" seems to anticipate the retention of documents beyond any term of their lawful possession.
Maybe so. But that’s a pretty narrow fact pattern. Like I said, you can’t trust me on this topic….
LODAL very helpful on SUBSECTION D. Thanks for sharing! --Barry@barryjagoda.com
Barry, thanks. (Barry is another longtime mutual friend of Jan Lodal's.)