The FBI’s search warrant targeting former President Donald Trump’s private club listed three statutes that were used to justify the seizure of boxes and documents from the property, a few of them marked as top secret.
Under a heading that reads “Property to be seized,” the warrant refers to: “All physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§ 793, 2071 , or 1519.”
- 18 U.S.C. §§ 793: Gathering, transmitting or losing defense information, which carries a penalty of as much as 10 years in prison.
- 18 U.S.C. §§ 2071: Concealment, removal, or mutilation generally, which carries a penalty of up to 3 years in prison and disqualification from holding office (more on this below).
- 18 U.S.C. §§ 1519: Destruction, alteration, or falsification of records in Federal investigations and bankruptcy, which carries a penalty of as much as 20 years in prison.
FBI agents on Monday raided Trump’s home and personal Florida club, Mar-a-Lago. The previous president and his attorneys have argued that the president declassified the materials before the tip of his one term in office.
An armed Secret Service agent stands outside an entrance to former President Donald Trump’s Mar-a-Lago estate, Monday, Aug. 8, 2022, in Palm Beach, Fla.
Terry Renna | AP
Trump has not been charged with any crime, and it isn’t clear whether he can be charged. He has called the situation a “witch hunt,” echoing his criticism of previous investigations into his actions.
It’s unlikely Trump could be banned from running for president again if he were indeed convicted of violating the law mentioned above, since the Structure would take precedence over the statute, legal experts have said.
“Cannot impose qualifications on holding the presidency by statute — the qualifications are set out within the Structure. The seek for ‘one weird trick’ to banish Trump from politics can have to proceed,” Washington Post legal columnist Jason Willick tweeted earlier this week, before the warrant was unsealed and released.
Willick was responding to Marc Elias, a veteran attorney who has been aligned with the Democratic Party for years. “Yes, I recognize the legal challenge that application of this law to a president would garner (since qualifications are set in Structure),” Elias tweeted late Monday. “But the concept a candidate would should litigate that is during a campaign is for my part a ‘blockbuster in American politics.'”
Legal experts are mixed about whether the statutes cited by the FBI will result in Trump’s prosecution.
Bradley Moss, a lawyer specializing in national security and federal employment, noted that former U.S. Air Force member Reality Winner “went to jail for five years for leaking one document in violation of 18 USC 793,” one in all the identical statutes listed on the warrant to raid Trump’s Florida home. Winner had leaked intelligence on Russian election interference to The Intercept and pleaded guilty in 2018. She was released early from prison in 2021 for good behavior.
John Coffee, a longtime professor at Columbia Law School, said federal authorities needn’t prosecute Trump in the event that they retrieved every little thing they were searching for. But, he added, they may have a much stronger case on the subject of the pro-Trump riot on Capitol Hill on Jan. 6, 2021.
“In the event that they do prosecute him, I feel it should be for January 6 charges, and these record-keeping offenses are more technical and might appear like piling on,” Coffee said in an email to CNBC. “Do not forget that the offenses you cited to me weren’t on the stone tablets that Moses brought down from the mountain, while the January 6 case looks more like a coup d’etat, treason or sedition — that are ancient and more serious charges.”
Charles Elson, a veteran attorney who makes a speciality of corporate law, told CNBC in an email he isn’t convinced that the FBI would have the ability to prosecute and convict Trump under the statutes listed on the warrant.
“Unless someone is selling classified information for profit, it could seem quite a stretch to prosecute a former president criminally and get a conviction under these statues — it seems a bit like they try to search out some kind of crime in his actions versus trying to find the perpetrator of a known crime,” Elson said in an email. “A really dangerous precedent in our democracy.”
Randy Zelin, an attorney who specialized in a big selection of legal disputes, told CNBC in an email that while the authorities can have proof Trump broke these statutes, proving intent could possibly be difficult. Proof of intend would “require proof of some communication; be it email, text, or oral,” he said. “Here is where cooperators turn out to be useful.”