Document Inquiry Poses Unparalleled Test for Justice Dept.


WASHINGTON — As Justice Department officials spent months this year negotiating with former President Donald J. Trump’s lawyers and aides over the return of government documents at his Florida home, federal prosecutors became convinced they were not being told the whole truth. .

That conclusion helped spark a decision that would amount to an unparalleled test of the Justice Department’s credibility in a highly polarized political environment: request a search warrant to enter Mar-a-Lago and find out where prosecutors suspected it would be highly classified material, beyond the hundreds of pages Mr. Trump had already sent back.

The government says that gamble paid off, with FBI agents taking away boxes of sensitive material during the search three weeks ago, including some documents with top-secret markings.

But the case barely ended there: What had started as an attempt to retrieve national security documents has now turned into one of the most challenging, complicated and potentially explosive criminal investigations in recent history, wreaking havoc on the Department of Justice. Mr Trump and public trust in the government.

Attorney General Merrick B. Garland now faces the prospect of deciding whether to bring criminal charges against a former president and likely a Republican candidate in 2024, a move without any historical parallel.

Remarkably, he may have to make this choice twice, depending on evidence his investigators find in their separate, wide-ranging investigation into Mr Trump’s efforts to reverse the outcome of the 2020 election and his involvement in the attack. January 6 at the Capitol.

The department’s investigation on Jan. 6 began as a manhunt for the rioters who attacked the Capitol. But last fall, it expanded to actions that took place before the attack, such as the plan to submit voter rolls to Congress falsely claiming that Mr. Trump had won in several key swing states.

This summer, prosecutors at the US law firm in Washington began questioning witnesses directly about possible involvement of Mr. Trump and members of his inner circle, including former White House chief of staff Mark Meadows, in efforts to reverse his election loss.

Despite all his efforts to distance the department from politics, Mr. Garland cannot escape the political consequences of his decisions. How he interacts with Mr Trump will certainly determine his tenure.

It is still unclear how both cases will end. Prosecutors working on the investigation into Mr. Trump’s handling of classified information are far from making a recommendation to Mr. Garland, according to those with knowledge of the investigation. Court records indicate that the work is continuing, with the possibility of more witness interviews and other investigative steps.

So far, Mr. Garland has indicated that he is comfortable with all decisions regarding Mr. Trump. He has resisted calls to appoint a special counsel to handle the investigation into the former president. In his first speech to the 115,000 employees of the department last year he expressed confidence that they could handle any case together. “We are all united by our commitment to the rule of law and the pursuit of equal justice under the law,” he said.

Over the course of this year, as prosecutors tried to understand how sensitive government documents ended up at Mr. Trump’s Florida resort, they began investigating whether three laws had been broken: the Espionage Act, which prohibits the unauthorized preservation or disclosure of national security. prohibits information; a law prohibiting mishandling of sensitive government documents; and a law against obstructing a federal investigation.

By the summer, investigations into how Mr. Trump handled classified information began to provide compelling evidence of possible intentions to break the law, according to two people familiar with the work. While there was not necessarily hard evidence, witness interviews and other material began to point to the possibility of deliberate attempts to mislead investigators. In addition to witness hearings, the Justice Department received CCTV footage of various parts of Mar-a-Lago from the Trump Organization.

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The heavily redacted affidavit explaining the government’s desire for a search warrant said the Justice Department had “probable reasons to believe evidence of obstruction will be found in “Mar-a-Lago, and that” the government has reasonable concerns that steps may be taken to frustrate or otherwise disrupt this investigation if the facts in the affidavit were disclosed prematurely.”

But a decision on whether or not to charge Mr. Trump for attempts to obstruct the investigation, or his handling of sensitive national security information, would involve a number of considerations.

At the heart of the matter would be evidence uncovered by the FBI, which is still trying to understand how and why government documents made their way to Mar-a-Lago and why some stayed there despite repeated requests for restitution by the National Archives. and a later subpoena from the Department of Justice.

But the highly classified nature of some of the documents retrieved from Mar-a-Lago and the possible evidence of obstruction are just a few of the elements involved in a final decision on whether to pursue a prosecution.

National security prosecutors will conduct a thorough analysis to determine whether that evidence conclusively shows that laws have been broken. That trial includes a look at how the facts have been applied in similar cases brought under the same laws, information that prosecutors examined when investigating former Secretary of State Hillary Clinton and former CIA Director David H. Petraeus.

For example, in the case where Ms. Clinton used a private email server, National Security Department officials asked prosecutors to delve deep into the history of the Espionage Act. The point was whether her handling of classified information indicated that she had committed gross negligence. A compelling case of gross negligence they did find involving a former FBI agent involved much more serious factors. After examining past examples, they found that her case did not meet that standard. Ultimately, the consensus was not to indict Mrs. Clinton.

But Mr Trump’s case raises the additional issue of obstruction of justice and the possibility that evidence could show that he or his legal team defied the Department of Justice to detain documents that belonged to the administration.

That, in a sense, reflects a previous obstruction of justice conducted by Robert S. Mueller III, the special counsel investigating whether Russia interfered in the 2016 election. His final report found that Mr. even ending it as he learned more about it. But Mr. Mueller declined to say whether Mr. Trump had broken the law, allowing then-Attorney General William P. Barr to acquit Mr. Trump of that crime.

There is no way of knowing if the Justice Department has any facts regarding obstruction that meet its requirements standard of prosecutionwhich is evidence that “would probably suffice to obtain and sustain a conviction”.

But the Justice Department’s own legal files have brought the issue of obstruction to the public’s attention. Should Mr. Garland discover that there is not enough evidence to charge Mr. Trump, the Justice Department under two successive administrations will have chosen not to prosecute Mr. Trump for that crime.

If Mr. Garland chooses to proceed with charges, it will be a historic moment for the presidency, a former leader of the United States accused of committing a crime and possibly forced to defend himself before a jury of his fellow citizens. It’s a process that could potentially unfold even if he once again faces the White House against an incumbent whose administration is prosecuting him.

That, too, poses huge risks to the department’s credibility, especially if the threat to national security posed by Mr. Trump’s possession of the documents, which is inevitably at least partially revealed in the course of a trial. , does not seem substantial enough to justify such a decision. serious move.

Mr. Garland and his researchers are fully aware of the implications of their decisions, according to people familiar with their work. The knowledge that they will be examined for impropriety and exceedance, they say, has underlined the need to look at the facts.

But a decision to prosecute — or to refuse to prosecute — has political implications that Mr Garland cannot escape. And regardless of judgment, the fact that he operates in an America as politically divided as it has been in decades may change.

Trump’s supporters have viewed any investigative moves surrounding the former president as unlawful attacks by a partisan justice bent on getting him. And his opponents believe that any decision not to prosecute, regardless of the evidence, would demonstrate that Mr Trump is indeed above the law.