What’s keeping Jack Smith? 

May 08, 2023

Special counsel Jack Smith is said to be a dauntless prosecutor. The press reports that he has concluded his investigation of the Mar-a-Lago classified documents. So what happens now? So far, nothing.

It all seems like a high-stakes game of Clue where we can guess Mr. Orangehair did it in the storage room with a carton, but we can't be sure until the cards come out of the envelope. The suspense is palpable.

The reported twists and turns in the investigation walk like espionage and obstruction of justice, talk like espionage and obstruction, and act like espionage and obstruction, but still no indictment despite the damning evidence.

The reported evidence is that Trump tried to hide the ball and keep subpoenaed classified documents from government investigators. This is a crime known as obstruction of justice. Smith appears to have left no stone unturned in his investigation, but we have only some informed speculation as to whether and when Trump will be on the receiving end of a federal indictment.

Federal Judge Beryl A. Howell, presiding over grand jury matters in Washington, has already alluded to evidence demonstrating that Trump "willfully sought to retain classified documents when he was not authorized to do so, and knew it."

The record is amplified by new bombshell evidence that Trump said on tape in 2021 that he knew he had classified documents, "he cannot discuss the document because he no longer possesses the sweeping presidential power to declassify" (in the words of the Guardian's Hugo Lowell), but regrets not doing so when he had the chance. It appears that he discussed the document with unauthorized persons.

Trump had absurdly claimed he declassified everything automatically when he took the documents from the White House, but the newly surfaced tape indicates that he understood after he left office that he was holding on to a classified document about a possible attack on Iran, undercutting his first line of defense. Prosecutors have apparently had the tape since March of this year. So it's not just an obstruction case. Section 793(e) of the Espionage Act makes criminal the willful retention of documents "relating to the national defense," and the failure to deliver them to authorized representatives of the government.

Trump's lawyers have already run the white flag up the pole, beseeching Attorney General Merrick Garland for a meeting to discuss what they claim is "the ongoing injustice that is being perpetrated by your Special Counsel and his prosecutors." The letter fails to particularize the claimed "injustice," except for Trump's shopworn defense that his treatment is unlike that of "President Biden, his son Hunter, and the Biden family."

Last I checked, it is Trump who has said that, if elected, he would hunt down and fire all agents and prosecutors who are investigating him. Imagine the outcry from the right if Biden had said he would hunt down and fire all agents and prosecutors investigating Hunter Biden or his little old laptop. In the real world, Biden has kept on a Trump-appointed U.S. attorney to continue the investigation of his son.

So far, Garland has denied the request for a meeting with Trump's lawyers. The lawyers, however, reportedly met with prosecutors today. It is not known at this point whether Garland attended the meeting. Defense lawyers in white-collar cases commonly seek such a pre-indictment meeting as their last clear chance to stave off a possible indictment.

Trump's valet, Walt Nauta, reportedly told federal agents that the former president personally directed him to move boxes of documents from a Mar-a-Lago storage area to Trump's private residence. This was reportedly corroborated by surveillance footage that showed Nauta and another employee moving boxes both before and after Trump received a subpoena in May of last year for classified documents he took from the White House. Together, the witness account and the footage provide the most direct evidence that Trump tried to illegally obstruct the government's search.

Here's what we do know. Apparently, there was separate conduct on the part of the unidentified employee in June and July of 2022 involving two Justice Department subpoenas covering classified documents stored at Mar-a-Lago. In June, the employee was seen on surveillance footage moving boxes into the storage room the day before the feds arrived to collect classified material in response to the subpoena.

In mid-July, a second subpoena demanded footage from security cameras around the property. A mystery employee at Mar-a-Lago apparently quizzed Trump's IT person about how the security cameras worked and how long images would remain stored in the system. Clumsy of him. Investigators eventually were able to retrieve the video footage and get the full tale of the tape.

The key issue is when and why the documents in the boxes were moved out of the storage room — and why Trump wanted the documents anyway. In June, the feds went to Mar-a-Lago, where Trump's lawyers handed them a sealed envelope containing 38 classified documents, together with a letter, signed by a lawyer for the former president, attesting that a diligent search had been carried out for any additional material in response to the subpoena and that none had been found. That statement was false. Authorities were denied, however, access to any of the documents in the storage room.

In August, when agents executed a search warrant, they found more than 100 additional classified documents in Trump's office and in the storage area. Last August, prosecutors claimed in a court filing that they had evidence that "obstructive conduct" took place in connection with Trump's response to the subpoena, and that classified documents "were likely concealed and removed from the storage room."

The facts seem riddled with criminal conduct. But where's the indictment? "Teflon Donald" stares down his serious legal problems and brags he is 34 points ahead of Florida Gov. Ron DeSantis (R) in the polls. The closer we get to primary season, the harder it may be for the Justice Department to indict Trump.

James D. Zirin is a former federal prosecutor in the Southern District of New York.

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