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What to Know About the Trump Classified Documents Probe as Charging Decision Nears

9 minute read

The Justice Department may be nearing an end to its long-running investigation into former President Donald Trump’s handling of classified documents after he left the White House. A decision about whether to seek charges is expected in the coming days or weeks, former Department officials and legal experts say.

Trump’s lawyers on Monday met with Justice Department officials after requesting a meeting to discuss their concerns about the investigation. Following the visit, Trump posted a message on his social media platform, Truth Social, inveighing against a possible indictment. “How can DOJ possibly charge me, who did nothing wrong,” he wrote in all capital letters.

The probe, led by Justice Department Special Counsel Jack Smith, focuses on whether Trump broke the law by mishandling sensitive national-security documents after his election defeat or obstructed the government’s investigation into the matter.

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In recent months, Smith’s team has reportedly concentrated on several key pieces of evidence, including an audio recording in which Trump allegedly acknowledged he kept a classified Pentagon document about a potential attack on Iran, and notes from one of his lawyers about their private interactions, which a federal judge ordered be given to investigators. A federal grand jury is expected to meet this week in Florida to hear the evidence, NBC reported.

It’s not clear whether prosecutors have made a decision about whether to seek a federal indictment of Trump, an unprecedented step to take against a former President. Trump is currently facing four separate criminal investigations, including another inquiry by Smith’s team into attempts by Trump and his allies to overturn his 2020 election loss, as well as his role in the events that led to the storming of the Capitol on Jan. 6, 2021. In Georgia, Fulton County District Attorney Fani Willis is exploring Trump’s efforts to overturn Joe Biden’s 2020 election win in the state, where Trump and his allies made unfounded allegations of voter fraud.

In April, Trump became the first former President in U.S. history to face criminal charges after Manhattan District Attorney Alvin Bragg charged him with 34 felony counts of falsifying business records, in connection with hush-money payments to a porn star designed to suppress information that could damage his electoral prospects in 2016. Trump has denied wrongdoing in each of the matters.

Some legal experts believe Trump is particularly vulnerable to prosecution in the documents case. “I think this one is the most damaging because not only is there so much evidence, but it goes directly to the heart of his ability to be the leader of our country,” says Jessica Levinson, a professor at Loyola Law School. “It’s truly a complete undermining of his job if he really took government documents that don’t belong to him, if he showed people government documents that could have put our country at risk, and if he obstructed justice by not complying with a subpoena.”

Here’s what to know about the inquiry:

What is the Justice Department investigating?

The Justice Department is investigating how classified documents got to the Florida home of former President Trump, and whether he sought to impede the government’s efforts to secure those documents after a subpoena was issued in May 2022 demanding their return.

The Justice Department has moved in recent months to develop a fuller picture of how the documents were stored, who had access to them, and what Trump told aides and his lawyers about the material he had and where they were kept.

The investigation stems from the discovery of more than 100 classified documents at Mar-a-Lago after Trump’s advisers said they had conducted a “diligent search” of the property in response to a subpoena and had turned over “any and all” documents with classified markings. Some of the documents seized by the FBI in a raid of his home reportedly contained extremely sensitive information.

At the heart of the investigation are two potential crimes: Possible obstruction of justice for not complying with the Justice Department’s subpoena, and possible mishandling of national security secrets for keeping classified documents in an unauthorized location.

Read More: Inside Trump’s Strategy To Turn Legal Woes Into Political Advantage.

The Washington Post reported in May that two of Trump’s employees moved boxes of papers at Mar-a-Lago the day before FBI agents and a prosecutor arrived to retrieve the documents collected in response to the subpoena.

Trump has argued repeatedly that he could take records with him after leaving the White House, even though the Presidential Records Act gives ownership to the National Archives and Records Administration. He has also claimed, without evidence, that he had “automatically” declassified the documents he took with him. “I took the documents; I’m allowed to,” Trump said at a recent CNN town hall. “I have the absolute right to do whatever I want with them.”

What evidence does the Justice Department have?

Federal prosecutors reportedly possess a recording from 2021 of the former President allegedly discussing a sensitive military document he claimed to have kept after leaving the White House. On the audio tape, Trump signaled that he was aware of his inability to declassify the document because he had already left office, according to CNN, which cited anonymous sources familiar with the investigation.

The special counsel’s office also has notes from Trump’s former lawyer, Evan Corcoran, who recorded recollections of his legal work for the former President, The New York Times has reported. The notes, which were shared with the Special Counsel, provide the Justice Department with a rare look into a lawyer’s private dealings with their client. Such interactions are typically shielded by attorney-client privilege, but a federal judge ordered Corcoran to hand over the notes because prosecutors claimed they had sufficient evidence of a crime.

Read More: The Major Investigations Into Donald Trump.

Smith’s team has other evidence at its disposal. A maintenance worker told federal prosecutors that he helped move boxes into a storage room at Mar-a-Lago a day before a Justice Department official came seeking the return of classified material, according to The New York Times. Prosecutors also subpoenaed a software company that handles all of the surveillance footage for the Trump Organization to hand over tapes from Mar-a-Lago after footage from a storage camera was found missing or unavailable.

“The leaked evidence in the hands of Special Counsel Jack Smith is pretty extraordinary,” says Kim Wehle, a professor at the University of Baltimore School of Law and former assistant U.S. attorney. “And the foregoing is just some of what we know publicly.”

Why this matters for Trump

Mishandling classified information is a federal crime that could lead to prison time. Any charges, if filed, would likely come at a politically inopportune time for Trump, who leads the pack of contenders in the 2024 Republican presidential primary.

The documents case is no slam dunk, legal experts say. To win a conviction on an obstruction-related crime, the law states that prosecutors would have to prove that Trump or his aides intentionally mishandled the material and that he did so to impede the official work of a federal investigation, which carries a high legal bar.

“Intent and knowledge on Trump’s part is what’s hard to prove,” Wehle says. “His defense would have to poke holes in the case by arguing, for example, that his employees did it without his knowledge or consent or that he believed he could declassify in his mind, possibly even after leaving office.”

Read More: The Historic—And Entirely Predictable—Indictment of Donald Trump.

The Justice Department has also alleged that Trump may have violated part of the Espionage Act—a criminal statute that protects national defense information—by keeping classified documents at Mar-a-Lago.

Trump, writing on Truth Social, called the investigation a “hoax” and claimed he did “nothing wrong.” He also compared his case with that of President Biden, who was also found to have had classified documents in his possession from his time as vice president. (A separate special counsel has been investigating how and why classified documents ended up at Biden’s home and office.)

Could Trump still run for President if convicted?

Even if Trump is convicted by the special counsel, the charges against him won’t disqualify him from the presidency, according to legal experts. Under the Constitution, all natural-born citizens who are at least 35 years old and have been a resident of the U.S. for 14 years can run for president. There is no legal impediment to Trump continuing his presidential campaign while facing criminal charges—even if he were jailed.

“Indictment is absolutely no legal bar to him running,” says Levinson, the law professor. “And a conviction is not a legal bar to him serving.”

At least two candidates with criminal convictions have run for president in the past, albeit unsuccessfully. In 1920 a candidate named Eugene Debs ran for president while in a federal prison in Atlanta as the nominee of the Socialist Party. Debs was convicted of violating the Espionage Act over an anti-war speech, and won more than 3% of the vote nationally. Lyndon LaRouche ran for president in every election between 1976 and 2004. LaRouche, a fringe candidate who embraced conspiracy theories, was convicted of tax and mail fraud in 1988 and ran his 1992 campaign from prison.

But the legalities become murkier if Trump were to win the presidency while facing impending charges or a conviction. Mishandling of classified government materials is a felony crime punishable up to 10 years in prison. Obstruction of justice is also a felony crime, with a maximum prison sentence of 20 years.

The general view among constitutional scholars is that the need for a duly elected president to fulfill the duties of their office would take precedence over a criminal conviction and require the prison sentence to at least be put on hold. Trump could even try to pardon himself immediately upon taking office.

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Write to Nik Popli at nik.popli@time.com