It appears more and more likely by the day that former President Donald Trump will be criminally charged and indicted, according to former Fox News legal analyst Andrew Napolitano. The irony is not lost on the former Fox host either, as Trump would be charged with crimes he previously said should be punishable by death.
Napolitano, a conservative former judge, said it hurt him to write such words for a piece in the New Jersey Herald, but noted that the redacted affidavit that justified the FBI’s search warrant for government materials at Trump’s Mar-A-Lago residence revealed that the former President was likely to be prosecuted for three crimes: “Removing and concealing national defense information (NDI), giving NDI to those not legally entitled to possess it, and obstruction of justice by failing to return NDI to those who are legally entitled to retrieve it.”
“Under the law, it doesn’t matter if the documents on which NDI is contained are classified or not, as it is simply and always criminal to have NDI in a non-federal facility, to have those without security clearances move it from one place to another, and to keep it from the feds when they are seeking it. Stated differently, the absence of classification — for whatever reason — is not a defense to the charges that are likely to be filed against Mr. Trump.’
Napolitano added that Trump was guilty of “misreading and underestimating” federal investigators and then boasting that he had declassified all the documents in question, thereby proving that he knew the documents were in his possession and he wasn’t supposed to have them.
Napolitano continued, saying that Trump “committed a mortal sin in the criminal defense world by denying something for which he had not been accused.”
Prosecutors will be tasked with proving the documents contain national defense information, and that Trump put them into the hands of individuals not authorized to handle them and then stored them in an non-federally secure place like Mar-a-LAgo.
Some of that will be a difficult road for the DOJ and prosecutors, but Napolitano explains how proving obstruction will be fairly easy thanks to a law signed by then-President George W. Bush in 2002:
“But the Bush-era statute, the one the feds contemplate charging Mr. Trump with having violated, makes it a crime of obstruction by failing to return government property or by sending the FBI on a wild goose chase looking for something that belongs to the government and that you know that you have. This statute does not require the preexistence of a judicial proceeding. It only requires that the defendant has the government’s property, knows that he has it and baselessly resists efforts by the government to get it back.”
He adds that because of that, Trump is in “hot water,” and is left without a “legally viable” defense, before concluding by pointing out the irony in light of Trump’s statements on Julian Assange and Edward Snowden:
“In a monumental irony, both Julian Assange, the WikiLeaks journalist who exposed American war crimes during the Afghanistan and Iraq wars, and Edward Snowden, the former National Security Agency employee who exposed criminal mass government surveillance upon the American public, stand charged with the very same crimes that are likely to be brought against Mr. Trump.
On both Mr. Assange and Mr. Snowden, Mr. Trump argued that they should be executed. Fortunately for all three, these statutes do not provide for capital punishment.”