All of the news surfacing from Jack Smith’s Donald Trump classified documents probe that’s surfaced lately has been weeks or months old. There’s been a reason for that: the grand jury in the case hasn’t met in weeks. It’s led to the logical conclusion that the case is all bit over, with nothing left but the indictment.
Now the grand jury is being called back into session this week, according to The Guardian’s Hugo Lowell. No details are being provided about what the grand jury is specifically being called back for, but it’s not difficult to parse. The case appears to have wrapped a couple weeks ago, Smith has spent the past two weeks finishing up all the necessary behind the scenes pre-indictment maneuvering, and now Smith is bringing back the grand jury in order to bring the indictment.
This means we’re on indictment watch this week. Because no one knows for certain what Jack Smith’s timetable is, there’s no guarantee an indictment will come in any given timeframe. But it sure feels like this is indictment week. All signs now point to it, including the return of the grand jury. Get your popcorn ready!
Hugo Lowell's tweet is below:
Hugo Lowell @hugolowellNew via NBC: The federal grand jury that has been hearing evidence in the Justice Department’s investigation of Trump’s handling of classified documents is expected to meet again this coming week in Washington, per people familiar. https://twitter.com/hugolowell/status/1665189477831122946Kurt Eichenwald @kurteichenwaldAs a flood of details of the Trump MaraLago case come out, Trump, commentators etc say Smith's team is leaking. As someone who has covered these kinds of cases many times, that is almost certainly not true. And the fact that this much is coming out is a bad sign for Trump as investigations near their close, there are scores of people who know what is going on. Every witness has a lawyer, and all the lawyers speak to each other to make sure that their clients have not made an error in their testimony to the grand jury. https://twitter.com/kurteichenwald/status/1665080029825335296Former Watergate prosecutor Jill Wine-Banks, famous for her lapel pins, wore a pin depicting a piece of toast. She then explicitly stated on the air that she’s wearing it because “Trump is toast.” She was basing this on new reports that all along, Jack Smith has had a smoking gun recording of Trump discussing stolen classified documents.
Wine-Banks is right of course. Espionage indictments aren’t something that you can just magically shake off – even temporarily. They’re a far cry from the financial felonies Trump was recently indicted on in New York. When it comes to these espionage charges, Trump will be lucky if he even gets out on bail while awaiting trial. And yes, he’s going to prison.
Earlier this week it was reported that DOJ Special Counsel Jack Smith has partially built his criminal case against Donald Trump based on a recording of Trump discussing a classified document he’d stolen. Now it turns out Smith also has recordings of a different kind.
Jack Smith has long been in possession of “notes” taken by Trump attorney Evan Corcoran. These are the notes that the courts handed to Smith while ordering that Corcoran testify against Trump to the grand jury. These notes are crucial because they provide corroboration for Corcoran’s testimony. The notes prove that the version of events that Corcoran is now giving in his testimony is the same version of events that Corcoran witnessed in real time, and not merely something that he’s made up or altered after the fact.
Here’s the kicker. These “notes” are actually recorded notes that Corcoran made while he was representing Trump in the classified documents probe, per new reporting from the New York Times. This means that Jack Smith isn’t merely in possession of a few Corcoran scribbles; he has Corcoran on tape documenting everything that he witnessed Trump saying and doing at the time.
Again, these notes are all about allowing the jury (for now the grand jury bringing the indictment, and eventually the trial jury bringing the conviction) to feel confident in believing the accuracy of the testimony that Evan Corcoran is giving against Donald Trump. Under the law, testimony is considered more reliable if the witness took real-time notes. And in this instance Jack Smith has been able to play entire recordings of Corcoran to the grand jury that prove he hasn’t changed his story. Smith will get to play those recordings again when Corcoran inevitably testifies in Trump’s criminal trial.
There are smoking guns and then there are SMOKING GUNS. Where does this recording of Donald Trump discussing stolen classified documents rank? Former federal prosecutor Glenn Kirschner says it’s the ballgame because of incriminating it is:
Former federal prosecutor Glenn Kirschner about the Trump tape in the classified documents case:
“This is evidentiary manna from heaven for federal prosecutors because what he has done is he’s put himself right smack in the middle of a potential espionage charge, a crime under Chapter 37 of Title 18. That is the Espionage Act.
It becomes pretty clear that he mishandled national defense information, which is a criminal charge under the Espionage Act. And looks like the feds have an audio recording of him doing so.”So, you have top notch former federal prosecutors saying that Trump is finished and that means a lot. This upcoming DOJ indictment is pretty much going the same way as it happened in Manhattan with the grand jury meeting for second time before the indictment is handed down.
Here is the NBC exclusive article that was referenced by Hugo Lowell:
Grand jury in Trump classified documents case expected to meet this coming week after hiatusA grand jury that has been hearing evidence in the case against former President Donald Trump is expected to meet this coming week in Washington after a lull.
The federal grand jury that has been hearing evidence in the Justice Department’s investigation of former President Donald Trump’s handling of classified documents is expected to meet again this coming week in Washington, according to multiple people familiar with the investigation.
Prosecutors working for Special Counsel Jack Smith have been presenting the grand jury with evidence and witness testimony for months, but activity appeared to have slowed in recent weeks based on observations at the courthouse and sources.
It’s unclear whether prosecutors are prepared to seek an indictment at this point. The Justice Department would not comment on the status of the investigation.
Based on reporting from NBC News and other outlets, prosecutors face two central legal questions: 1) Did Trump wrongfully retain classified documents after he left the White House? 2) Did he later obstruct the government’s efforts to retrieve them?
If Smith decides to indict Trump, it would be the first time a former president has been charged with a federal crime. Though Trump has already been charged in New York with state crimes related to hush money payments, the cases differ dramatically.
Trump maintains that he has broken no laws and continues to lambast Smith and the Justice Department, dismissing the investigation as a politically motivated smear campaign. Here’s what we know and what we don’t know, and what to watch for as this unprecedented legal case unfolds.
What are the facts?In June 2022, federal agents traveled to the former president’s home in Florida to retrieve documents from his time in the White House, at least some of which they believed to be classified. Trump’s attorneys turned over 38 classified materials to authorities, and certified in writing that they’d done a diligent search.
After visiting Mar-a-Lago and obtained evidence that additional classified documents had not been returned, Justice Department officials obtained a search warrant from a judge and FBI agents searched Mar-a-Lago in August 2022. In total, the DOJ recovered more than 300 documents with classified markings.
Trump’s attorneys previewed their defense case in a letter to Congress this year, writing that the documents ended up in Florida because White House staff had "simply swept all documents from the President’s desk and other areas into boxes." But it’s unclear whether Smith’s probe has unearthed evidence to the contrary.
What crimes could Trump be charged with?Clues about what precise crime or crimes Smith has been investigating can be found in court filings, including the search warrant and an accompanying affidavit submitted by the DOJ. There are two basic categories: 1) crimes about the handling of classified documents, and 2) crimes about obstructing investigators from retrieving those materials.
Prosecutors cited the Espionage Act, which conjures up an image of someone acting as a spy for a foreign country. But the statute, enacted after World War I, is broader. It criminalizes anyone with "unauthorized possession" of "national defense" material who "willfully" retains it. A string of court decisions has concluded that even if a document isn’t technically "classified," someone can be charged under the law, so long as the information is "closely held" and the information would be useful to US adversaries.
Justice Department attorneys also raised the prospect of an obstruction-related crime in court filings. But that law only applies if prosecutors can show that Trump’s intent was to "impede, obstruct, or influence the investigation." If Trump is charged with obstruction, it will be important to see what specific evidence Smith’s team has gathered about the former President's intent.
Prosecutors also don’t have to limit their case to the crimes explicitly outlined in the search warrant. Recent reporting from the Washington Post about Trump "sometimes" showing classified documents to others raises the question of whether he could be charged under an entirely different statute, "disclosure of classified information," which prohibits revealing certain classified material to anyone not authorized to receive it.
What is Trump’s most likely defense?Since the raid, Trump has claimed that he had the power to declassify anything he wants, that he had a "standing order" to declassify documents, and that he could declassify materials simply by "thinking about it."
While there’s never been a case like this before — no former President has made such claims or been accused of such conduct — most national security lawyers say Trump’s argument is legally unpersuasive.
His broad power to declassify materials ended at noon on Jan. 20, 2021, once he was no longer president. But assume, for the sake of argument, that Trump declassified information in his mind as he flew on the plane from Washington to Florida. Attorney Bradley Moss says he would have still needed to effectuate that decision in some meaningful way.
"A verbal command doesn’t do it. A tweet doesn’t do it. There has to be follow-up documentation through the agencies making clear what is being declassified," Moss told NBC News. "If not, anyone who saw it would still have to treat it as classified.” But, Moss cautioned, there’s no precedent for anything precisely like this case.
Many have pointed to the fact that Smith could avoid a battle about whether the documents were declassified by charging under the law regarding "national defense" material, but Trump would still likely argue he held onto materials he believed he had the right to possess. "His best defense is he didn’t realize they were classified documents because he didn’t pack them up," Moss added.
On an obstruction charge, Trump could argue that he relied on the advice of others, believed his team was complying with demands to return the documents, or others like his valet Walt Nauta, who moved the boxes, went rogue.
Where are Trump’s legal vulnerabilities?Claims of Trump’s ignorance about how the documents got to Mar-a-Lago are undercut by the fact that he held onto them, even after the government repeatedly asked for them back, says Mary McCord, the former Acting Assistant Attorney General for National Security at the DOJ and an NBC News/MSNBC contributor.
"He had received a request and then a subpoena," McCord said. "If the Archives said we need the documents back and he gave everything back right away, we wouldn’t be talking about criminal culpability."
But that’s not all. Recent news, first reported by CNN, of Trump talking on tape about a classified document he kept after leaving office and wishing that he had declassified it also hurts his case in significant ways. "It kind of locks him in," McCord added. "It shows he actually knows he can’t show documents to people who aren’t authorized."
The recording could also be key to rebutting any defense that Trump might raise about having previously declassified everything he took after he left office.
https://www.nbcnews.com/politics/donald-trump/grand-jury-trump-classified-documents-case-expected-meet-coming-week-h-rcna87599
