Process Crimes Pose Key Legal Jeopardy in Trump’s Classified Documents Case: Former Federal Prosecutor

Republican presidential candidate former President Donald Trump arrives at the Miami International Airport in Miami, Florida, on June 12, 2023. (Win McNamee/Getty Images)

Former Assistant U.S. Attorney John O'Connor is not particularly convinced for President Donald Trump’s mere possession of classified documents after his presidency was criminal. He believes the way Trump responded to requests to return those documents are what could spell the real legal peril.

Trump was charged by special counsel Jack Smith in a 37-count indictment last week. The indictment (pdf) specifics 31 counts of “willful retention of national defense information,” as well as a count of withholding a document or record, “corruptly” concealing a document or record, concealing a document in a federal investigation, conspiring to obstruct justice, scheming to conceal materials, and making false statements. The indictment also alleges Trump showed classified documents to other people on two separate occasions in 2021.

“Those 31 counts do not float my boat, I think they’re very much window dressing,” O'Connor said of the charges of “willful retention of national defense information” during a Monday interview with NTD’s “Capitol Report.”

O'Connor said presidents have traditionally kept papers from their administration after leaving office and only after President Richard Nixon sought to destroy records from his time in office did Congress pass the Presidential Records Act, requiring presidents to preserve their records.

“Even with the Presidential Records Act, the president has some unspecified time within which to hand over the documents,” O'Connor said. “So mere possession of classified documents by an ex-president is not illegal, should not be looked at as illegal. And so, yes, it’s a very flimsy basis to say that there’s anything wrong with him possessing classified documents. I don’t buy it.”

O'Connor also argued Trump’s retention of classified documents as president “pales in comparison” to President Joe Biden’s retention of classified documents. Documents with classified markings were found at the Penn Biden Center in Washington D.C. in November and at Biden’s home in Delaware in January. Some of the documents found in Biden’s possession were from his time in the Senate and could have been in his possession for years.

Process Crimes ‘Devastating’ to Trump

While O‘Connor challenged the legal viability of the first 31 counts in the special counsel indictment, he said Counts 32 through 37 are “very strongly shown, and frankly, very devastating to the ex-president,” O’Connor said.

The federal indictment alleges that in May of last year, Federal officials issued a subpoena asking for Trump to turn over documents in his possession that bore classified markings. The indictment states Trump spoke with an attorney who memorialized in their conversation that Trump did not want federal officials going through his records. Trump allegedly asked his attorneys whether it would be better if they simply denied having the requested documents and referenced how representatives of former Secretary of State Hillary Clinton had deleted thousands of emails from a private server she operated after the contents of that server were subpoenaed.

The indictment further states that on May 23, 2022, an attorney told Trump he would come by to review the documents in Trump’s possession on June 2, 2022. Between May 23 and June 2, Trump allegedly directed co-defendant Waltine Nauta to remove 64 boxes from a storage room at Trump’s Mar-a-Lago resort. Trump allegedly spoke with Nauta by phone again on June 2 and Nauta subsequently moved 30 boxes of documents back to the storage room, which Trump’s attorney later reviewed. One of Trump’s lawyers disclosed the storage room as the location of Trump’s documents, even though Trump had other boxes of documents elsewhere on his property.

On June 3, 2022, Nauta allegedly loaded some of the boxes in Trump’s possession onto a plane bound for his Bedminster, New Jersey, golf resort.

Trump’s communications with Nauta and the movement of boxes of documents serve as the basis for the obstruction and conspiracy charges. Federal prosecutors allege Trump and Nauta conspired to conceal documents from Trump’s lawyers and ultimately from federal investigators seeking their return.

O'Connor said Trump could have legally challenged the subpoena requesting that he turn over certain documents, “but you can’t just simply lie to the government, you can’t submit or cause to be submitted a perjurious statement. So I gotta say, even though these are process crimes, they’re important process crimes.”

Noting that he has previously written articles favorable of Trump, O'Connor said, “I feel like the president has let down his supporters in a way and I just I feel bad for everyone here.”

Predicts Jury Will Convict Trump

Though he finds the first 31 counts flimsy, O'Connor predicted members of a jury will vote to convict on at least some of the remaining charges.

“I don’t see how any jury will not convict Trump on some of those counts. You know, whether it’s six or eight counts, those counts are very, very tough for him to defend,” O'Connor said.

“Now, luckily, he has a judge who probably is not biased against him. And he may get probation, he may get a few months in a country club prison, but he’s going to get convicted, in my humble opinion,” O'Conner added.

Currently, Trump’s case is assigned to Judge Aileen Cannon, an appointee of the former president who ruled in his favor in a prior case related to the classified documents investigation.

Trump pleaded not guilty to the charges during an arraignment hearing on Tuesday. The former president has maintained his innocence, calling the charges “a travesty of justice,” “election interference,” and a “witch hunt.”

NTD News reached out to attorneys representing Trump but they declined to comment.

From NTD News