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Search warrant laws and lists provide clues for investigation into Trump documents

The order authorizing the FBI to search former President Donald J. Trump’s Florida residence on Monday listed three criminal laws as the basis for the investigation, and offered a glimpse of an investigation into his possession of government documents.

The search warrant, which was unsealed and made public Friday in response to a Justice Department motion, showed that the magistrate who issued it believed there were likely reasons to believe the FBI would find evidence for all three crimes.

Mr Trump, who had refused to make the documents himself public but had no objection to their release, said the materials listed in an inventory of items seized from his home had all been released. The inventory included multiple caches of documents the FBI described as top secret, along with other government files.

Even if it’s true that Mr. Trump considered the files released before the end of his presidency, none of the three crimes depend on whether the documents were classified.

the first law, Section 793 of Title 18 of the US Code, is better known as the Espionage Act. It criminalizes the unauthorized retention or disclosure of information related to national defense that could be used to harm the United States or aid a foreign adversary. Each offense can carry a maximum prison sentence of 10 years.

Despite its name, the Espionage Act is not limited to cases of espionage for a foreign power and is written to broadly cover the misuse of security-related secrets. The government has used it extensively to prosecute officials who have leaked information to the news media for the purpose of, for example, whistleblowing or otherwise informing the public.

Importantly, Congress enacted the Espionage Act in 1917, during World War I—decades before President Harry S. Truman issued an executive order that created the modern classification system under which documents can be classified as confidential, classified, or top secret. The president is the ultimate arbiter of whether any of those classifications apply — or should be lifted.

As a result, while these classifications – especially top secret – can be good indicators that a document likely meets the standard of “national defense information” covered by the Espionage Act, charges may be brought under that law against someone who national security has hoarded secrets, even if they were not considered classified.

The list of items whose warrants authorized the FBI to seize captured this nuance. It said agents could take “documents with classification markings” along with everything else in the boxes or containers where they found such files, as well as any information “related to the retrieval, storage or transmission of national defense information or classified material.” .”

The administration did not say what specific documents the investigators believed Trump kept at Mar-a-Lago, nor what they found there. The inventory of items was sketchy, including multiple mentions of, say, “various top secret documents.”

But calling “retrieve, store or transmit” classified information in the warrant offered a possible clue to at least one category of the files the FBI may have been looking for. One possible interpretation of that phrase is that it hinted at encrypted communications, hacking or surveillance capabilities.

The other two laws invoked in the arrest warrant have nothing to do with national security.

The second, Section 1519is an impediment law that is part of the Sarbanes-Oxley Acta wide range of reforms passed by Congress in 2002 following financial scandals at companies such as Enron, Arthur Andersen and WorldCom.

Section 1519 establishes a penalty of up to 20 years in prison per offense for destroying or concealing documents or records “with the intent to impede, impede, or influence the investigation or good administration of any matter” within the jurisdiction of federal departments or agencies.

The order does not specify whether that obstruction attempt is a reference to the government’s efforts to recover all publicly owned documents to be given to the National Archives and Records Administration, or anything of the kind.

The third law that investigators cite in the warrant, Section 2071, criminalizes the theft or destruction of government documents. It makes it a crime, punishable in part with up to three years in prison per offense, for anyone who has a record or document of federal court or public office in custody to intentionally and unlawfully conceal, remove, mutilate, falsify or destroy.

While the list of items cleared by the search warrant by FBI agents to seize included “documents with classification marks,” it contained a separate catch-all phrase that appeared to be intended to pick up any government documents Mr. Trump had unlawfully taken and held.

The agents were authorized to seize “all government and/or presidential documents created between January 20, 2017 and January 20, 2021” – the dates of Mr. Trump’s presidency – as well as “any evidence of the knowing change , destruction or concealment of government and/or presidential documents, or of documents with classification markings.”

Specifically, another Section 2071 penalty for any conviction is that the defendant may not hold federal office. Against the backdrop of widespread expectations that Mr Trump plans to run for president again in the 2024 election, that provision has attracted particular attention.

However, many legal specialists believe that a Section 2071 conviction is unlikely to prevent Mr Trump from fleeing again. Supreme Court rulings show that because the Constitution establishes criteria for eligibility for president, Congress cannot change that standard under criminal law.

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