Editor’s Note: Norman Eisen is a senior fellow at the Brookings Institution. He was former President Barack Obama’s ethics czar and was special impeachment counsel to the House Judiciary Committee in 2019-2020. Asha Rangappa is a senior lecturer at Yale University’s Jackson Institute for Global Affairs. She is a former special agent in the FBI, specializing in counterintelligence investigations. Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy. The views in this commentary belong to the authors. View more opinion at CNN.
A week of stunning developments for the possible criminal liability of former President Donald Trump and his circle was capped off with this weekend’s news that a Trump lawyer had signed a statement this summer saying that all material marked as classified in the former President’s possession had been returned. Together with earlier revelations, this latest piece of the puzzle points us to the direction in which the Department of Justice is headed – and when.
First, with the search warrant at Trump’s Mar-a-Lago residence now public, it shows the possibility of alleged crimes that are significant. The warrant is based upon probable cause to believe, first, that taking large quantities of materials to Mar-a-Lago violated the core federal criminal document preservation statute related to presidential records. It forbids the willful concealment, removal, or destruction of documents – classified or not – belonging to the government of the United States. The maximum penalty is three years’ imprisonment.
More serious still is the possible violation of the federal Espionage Act, also listed on the warrant. Its violation carries a maximum penalty of 10 years in prison. Individuals are subject to conviction under the act if they willfully retain and fail to deliver information “relating to the national defense” upon the demand of a federal officer entitled to receive such information that has come into the individuals’ possession.