The Dangers of Trump-Prosecution Syndrome

In January, fifteen boxes of records that Donald Trump had taken from the White House to Mar-a-Lago, his Florida estate, arrived at the National Archives. Inside were printouts of news stories, personal letters, photographs, and other mementos—the detritus of the Trump Presidency. But interspersed in the hodgepodge of items were a hundred and eighty-four classified documents—including sixty-seven stamped “confidential,” ninety-two marked “secret,” and twenty-five labelled as “top secret.” All but one of the boxes held classified information.

Markings indicated that some of the documents included information that had come from clandestine human sources and electronic eavesdropping—the most sensitive methods used by American intelligence agencies to collect information. The archivists, according to a thirty-eight page affidavit released on Friday, referred the case to the Justice Department for review. In legalistic prose, archive officials described the contents of the boxes: “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records, and ‘a lot of classified records,’ ” the affidavit stated. “Of most significant concern was that highly classified records were unfoldered, intermixed with other records, and otherwise unproperly identified.” F.B.I. agents found that “several of the documents” also contained what appear to be Trump’s handwritten notes.

The details of Trump’s reckless handling of highly classified information helped federal prosecutors make their case to Bruce Reinhart, a federal magistrate judge in Florida, on August 5th, that they needed to conduct a search of the former President’s estate in Palm Beach. Three days later, with Reinhart’s approval, Justice Department officials and F.B.I. agents descended upon Mar-a-Lago and carted away four sets of top-secret documents and seven other sets of classified documents.

Earlier this week, Reinhart ordered that the affidavit be unsealed. A separate Justice Department filing, also released on Friday, explained why much of the legal filing had been redacted, and hinted at how they had learned about additional classified documents in Trump’s possession. Investigators stated that they had obtained “information from a broad range of civilian witnesses” but argued that they should remain anonymous because they may be subject to “witness intimidation or retaliation.”

Trump, within minutes of the documents’ release, declared himself a victim of a conspiracy. “Affidavit heavily redacted!!! Nothing mentioned on ‘Nuclear,’ a total public relations subterfuge by the FBI & DOJ,” Trump posted on Truth Social, the platform he launched after being banned from Twitter. “Judge Bruce Reinhart should NEVER have allowed the Break-In of my home.”

In a more normal political environment, the Trump case could serve as a civics lesson, of sorts, for Americans. Despite Trump’s false claims, Reinhart has made public as much information as possible. The legal process that the case is following illustrates the procedures in American jurisprudence that help to insure that prosecutors proceed methodically and fairly. There are times, certainly, that these processes have abjectly failed, but Trump’s claims of planted evidence and “deep state” plots are false and dangerous. His conspiracy theories have unleashed a surge in threats of violence against F.B.I. officials. “It has gone way too far,” Tom O’Connor, a former head of the F.B.I. Agents Association, told me.

The investigation has raised expectations on the left of an event that Trump’s opponents have dreamed of for years: a criminal prosecution of the reality-television star turned President. Legal experts and former Justice Department officials told me that, based on the publicly known evidence, prosecuting Trump for mishandling classified documents appears simpler than bringing criminal charges against him for his role in the January 6th storming of the U.S. Capitol. The Espionage Act and other statutes clearly state that mishandling classified information is a crime. David Petraeus, a C.I.A. director during the Obama Administration, and Sandy Berger, a national-security adviser during the Clinton Administration, were both investigated for improperly handling classified information and eventually pleaded guilty to misdemeanor charges.

But Stephen Gillers, a professor of legal ethics at New York University, cautioned me that a successful prosecution of Trump would likely need to demonstrate that his reckless handling of classified information caused actual harm—such as adversaries learning about American intelligence methods. Trump’s lawyers would argue that he was merely guilty of carelessness. Trump himself, of course, would make the case that he was being politically persecuted. “I don’t think a jury would convict him without proof of harm. I’m not sure I would,” Gillers said. “He’s a sloppy guy, and he couldn’t let go of the Oval Office, so he dumped a lot of stuff into boxes—souvenirs of his Presidency.”

Gillers added that, fairly or unfairly, prosecuting a former President requires meeting a higher legal and political threshold. “It has to be one-hundred-per-cent irresistible as a matter of law,” he said. “There can be no fact, no event, no piece of evidence that could support any room for ambiguity.” A former Justice Department official I spoke with on Friday agreed. “The jury could say, ‘Who cares?’ ” he said. “I don’t know that it’s that easy or straightforward.”

The prospect of Trump yet again avoiding consequences for his actions is distressing. During the Trump Presidency, Republicans, sometimes mockingly, accused liberals of suffering from “Trump Derangement Syndrome,” or what they claimed was an exaggerated fear or hatred of Trump. In the wake of January 6th, dread about Trump has understandably intensified. The former President’s response to the Mar-a-Lago search shows that he is as dangerous and unrepentant as ever. But the emergence of a Trump-prosecution syndrome is also something to guard against. The criminal-justice system is a blunt instrument that is not well suited for resolving the country’s political conflicts. A rushed prosecution that results in an acquittal would only strengthen the former President. The judicial process can be maddeningly slow. The best option for Trump’s opponents is to wait and trust—prosecutors, judges, jurors, and voters—the very system that Trump is trying to subvert. ♦