The criminal statutes that are most likely to be considered in a situation like this are the same ones implicated in the Trump investigation. DOJ identified three in connection with obtaining the search warrant for Mar-a-Lago:
- 18 USC 793, the Espionage Act, which covers multiple crimes ranging from intentional use of sensitive information to damage national security to careless loss of national security information.
- 18 USC 2071, which involves willful removal, concealment, destruction, etc., of government records or the attempt to do so.
- 18 USC 1519, a statute criminalizing obstruction of federal investigations. This third statute is not implicated in the Biden matter; it’s involved in Trump’s case because of his efforts to conceal materials and deceive and interfere with the federal investigation in his case.
Both the 793 and 2071 violations for the most part require an element of willfulness. The 2071 violation requires that a defendant must have done the acts prohibited by the law intentionally with knowledge that he is violating the it. It does not appear, at least based on what we currently know, to apply to Biden. That leaves the Espionage Act, subsections (d) and (e) of which prohibit willfully refusing to return material related to the national defense, whether the defendant was properly or unlawfully in possession of it, at the request of a government official. Again, there seems to be no possible application to Biden, who voluntarily alerted the National Archives to materials it was unaware were missing.
There is one additional provision of the Espionage Act that could come into play. Subsection (f) provides that:
“Whoever, being entrusted with or having lawful possession or control of any document … relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer.”
On its face, the provision seems to criminalize gross negligence, an extreme degree of carelessness in handling national defense information. We do not know if there is gross negligence involved in the Biden case. But even if there is, sloppiness is not a crime. The Supreme Court, in a 1941 case,
Gorin v. United States, suggested that the statute must be interpreted to require proof that a defendant intended that their conduct benefit a foreign power to violate 793(f). After
Gorin, prosecutors have largely avoided indicting cases based solely on a gross negligence theory because of the likelihood that the Court would reverse any conviction they obtained.
One exception that is instructive and interesting involved James Smith, a Los Angeles base FBI agent
who had a 20-year affair with a Chinese national he recruited as a source. She gained unauthorized access to national defense material, because he sometimes had it when they were together. Although charged under a gross negligence theory, he instead pled guilty to making false statements when he concealed the nature of their relationship, and spent no time in prison. Given precedent and DOJ’s long-standing practice of requiring an aggravating factor beyond mere possession before charging Espionage Act cases, it seems unlikely that even this “gross negligence” crime applies here. Those who are careless with national security information may pay for it politically or professionally, but in the absence of a possible criminal violation, there is no reason to initiate an investigation.
We may well see the appointment of a special counsel here for prudential reasons or because DOJ has obtained more information than is publicly available. But unless the facts change significantly, criminal charges or anything that merits impeachment seem unlikely. Republicans will try to pillory the president, but that’s politics, which these days are largely divorced from any sense of what’s fair, or even what’s true. As for Merrick Garland, he would do well to follow the advice of one of his predecessors, Janet Reno, who frequently pointed out that since prosecutors could not make everyone happy with their decisions, they should do what was right.
Classified documents were found in spaces under the control of both Donald Trump and Joe Biden. That’s where the similarities here end. Cases that are similar should be treated the same, but these two are not. Loud, angry voices shouldn’t be permitted to turn this situation into something it isn’t, although they will undoubtedly try to. It’s up to us to arm ourselves with the facts and be prepared to confront people who try to alter them—with the truth.
(full article online)
First tonight, a programming note.
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