Special counsel Jack Smith could feasibly bring dissemination charges in a separate indictment against former President Donald Trump related to his handling of classified documents at his Bedminster, N.J. golf resort, legal experts argued in a Wednesday analysis from The Atlantic.
The two instances pointing to Trump moving documents from his Mar-a-Lago estate in Florida to his office in Bedminster and showing them off to others were outlined in the DOJ's Thursday indictment and captured in a 2021 recording of the former president. In the indictment, prosecutors accuse Trump of showing a classified map to a political ally and disclosing a secret military plan to attack Iran to a writer and a publisher.
"These two episodes were arguably the most egregious allegations of criminal wrongdoing mentioned in the indictment; they allege not just the improper retention of our nation's most highly classified information, but the intentional communication of such information," attorneys and New York University Law Professors Ryan Goodman and Andrew Weissmann wrote.
Trump's New Jersey conduct adheres to two federal offenses created to protect America's national security secrets, they argued. Title 18 U.S. Code's section 793 criminalizes the intentional communication of national defense information to unauthorized persons, while section 798 criminalizes intentionally disclosing classified information to the same. Both are more serious crimes than willful retention of sensitive government documents, which Trump was charged with 31 times last Thursday in the special counsel's investigation.
Though Smith's charges describe Trump's alleged dissemination and disclosure, the indictment does not charge him with the offenses. The attorneys cite the Constitution's requirement that prosecutors bring charges in the venue of the alleged criminal conduct as a possible reason for Smith's "cautious, narrow approach" to charging the former president: In practice, prosecutors could not indict Trump in Miami for his alleged Bedminster conduct.
"But the absence of such charges in the indictment raises the intriguing possibility of another indictment to come, in a jurisdiction, no less, with a pool of jurors and judges more favorable to the government's case against Trump," they wrote.
It is possible that Smith surmised any attempts to file dissemination charges against Trump in Florida would fall flat due to issues regarding the venue in which the conduct allegedly took place. Goodman and Weissmann add that Smith possibly didn't pursue the more serious charges due to the length of prison time Trump could be subject to if found guilty of any of the 31 counts of retention under the Espionage Act.
Though Smith might decide against it, they write, a potential separate indictment in New Jersey would be a "backup plan of sorts" for the special counsel if the Florida judge assigned to the case, Trump-appointee Judge Aileen Cannon, "if Cannon acts consistently with her prior Trump-friendly rulings, which were twice found by unanimous panels of conservative appellate judges to be both factually and legally flawed."
Former U.S. Attorney Joyce Vance called the scenario a "very interesting possibility."
"The Bedminster conduct can't be charged in Florida, so I'd view this less as a back up & more as a compelled separation of different criminal conduct under the law," she wrote. "Trump could always move to consolidate the cases in one court."
Trump was indicted on federal charges last Thursday and pleaded not guilty during his arraignment in Miami Tuesday. The indictment, made public last Friday, alleged 37 felony counts, including willful retention of national defense information, conspiracy to obstruct justice and making false statements.
