On Friday, the Justice Department released an edited version of the affidavit, and even with its major revisions, it worsens the former president’s position in many ways.
Even with revisions, the affidavit helps us understand not only the theory of law, but also its factual basis. In the style of the 1950s television series Dragnet, which is credited with but never included the saying “just the facts, ma’am,” we learned what was in 15 boxes that were returned in January 2022 a year later and onward. They included “184 unique classified documents, including 67 documents marked CONFIDENTIAL, 92 documents marked SECRET, and 25 documents marked TOP SECRET.”
We know that there were also some documents in the documents marked as “obtained as a result of the monitoring of external communication signals by people other than those for whom they were intended”; “information obtained with the help of human intelligence”; “obtained as a result of the collection of information permitted under the Foreign Intelligence Surveillance Act”; “Non-transferable to foreign nationals/U.S. citizens”; and “originator-controlled,” which means that the document is so sensitive that only its originator can allow additional distribution—even to those who already have the highest security clearance.
This, of course, is not the law, but it does not apply to the case. This is another important discovery in the affidavit. The second footnote in the document explicitly states that mishandling of national defense information is being investigated here. Secrecy is often used when it comes to national defense information, but the government does not need to prove that at least one line was classified in order to prosecute or convict Trump.
We get a taste of this misguided defense theory (along with a touch of panic) in another new revelation from the affidavit: an enclosed May 25, 2022 letter from Trump attorney Evan Corcoran to Jay Bratt, chief of counterintelligence and export control. department in the Department of Justice. Corcoran focused on the argument that Trump’s behavior could not be a violation of the classification statutes, but the Justice Department outplayed him by not stating that those statutes were violated by the behavior alleged in the sworn letter.
This brings us to the affidavit’s other major impact: the obstruction of justice suit under 18 USC 1519. These details show why the affidavit establishes probable grounds for believing that a government investigation was obstructed. The Justice Department was investigating these and other violations of the Espionage Act, and Trump and his allies fought it without any legal basis.
By the way, the affidavit may have additional details about the types of obstruction that are among the many revisions. Or it could be a filibuster theory, simply based on the Trump team’s long-standing senseless opposition to paperwork requirements.
Of course, lawyers constantly make aggressive arguments in favor of their clients. We are both practicing lawyers who are very familiar with this concept. But when you cross the line and facilitate your client’s possible criminal activities, including by making possible false statements about facts or the law, you risk turning from lawyer to accomplice.
To be clear, nothing has been found to indicate that Trump’s lawyers were aware that assurances given to the Justice Department were untrue and lawyers are routinely misled by their clients. But if we were to advise Corcoran and Bobb, we would advise them to hire their own lawyers after they see this affidavit. Of course, we do not prejudge whether they will fall under investigation, but the signs are alarming.
We support the release of affidavits, but we also respect careful editing, especially those that protect witnesses. The threat of exposing Trump and his supporters as witnesses and allowing them to participate in more possible obstructionism is too great.
If they are acting in good faith, then those who used to call so loudly for the release of affidavits must now accept this damning evidence as the evidence they asked for. Yes, there is a probable reason why Trump committed several crimes while handling US government documents. It’s probably too much to expect from the former president and the most outspoken members of his inner circle, but perhaps some of the more respectable members of his party mainstream will now see the light of day.
An earlier version of this article erroneously stated that “just the facts, ma’am” was a quote from Dragnet.