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Guilty State of Mind

The special prosecutor’s case may come down to one question: “What was Trump thinking?”

Trump Reportedly Brought Classified Documents To Mar-A-Lago During His Presidency
A car passes in front of former President Donald Trump's Mar-a-Lago resort. (Photo by Joe Raedle/Getty Images)

An important point of law—mens rea—may decide how the Trump Mar-a-Lago documents case plays out, perhaps even deciding his innocence or guilt.

Section 793 of the U.S. Code (“The Espionage Act”) requires the government to prove that Trump knew, or had reason to know, he had National Defense Information (NDI) in those boxes at Mar-a-Lago, that Trump knew, or had reason to know, there was a government official entitled to receive the information, and also that Trump then willfully failed to deliver it to that official. That's what the government has to prove, to a jury's satisfaction, in order to convict Trump. Doing so will require understanding what Trump was thinking at the time he kept the documents. None of this speaks to the obstruction charges directly, except to say it will be hard to prove obstruction to a jury when there was no underlying crime.

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Mens rea is Latin; it refers to criminal intent. The literal translation is “guilty mind.” It refers to the state of mind statutorily required in order to convict a particular defendant of a particular crime. Mens rea goes to an individual's intent when an action occurs. For example, if you punched someone in the face and you intended to do so, that's probably a crime, as opposed to hitting him by accident, or hitting him while truly believing the action was legal self-defense, which probably is not.

In Trump's case, things are not as simple as the CNN version of events (“Classified Material in the Ugly Shower Room Spells Conviction for the Orange Man”). In order to convict, the documents, classified or not, are simply a starting point. Special prosecutor Jack Smith will need to prove Trump knew what he was doing, or that he had reason to believe his conduct would injure the United States.

Under the Presidential Records Act of 1978 (PRA), the president designates all records he creates either as presidential or personal records. A former president is supposed to turn over his presidential records to the National Archives and Records Administration (NARA), and he has the right to keep some of his presidential and personal Records as defined by the law (there are exceptions, such as for national security information), usually for his library. It is unclear whether Trump's choices follow the letter of the Act.

Trump can, however, claim that he fully believed (even if wrongly) the boxes of material, most of which contained information that was not classified and included newspaper clippings and notes from other world leaders, are his personal records under the PRA. If so, did he knowingly retain NDI? Did he really think those documents “could be used to the injury of the United States” as the Espionage Act requires, or did he just think of them as mementos of his time in office, his personal records of the four years? If he thought these boxes were his personal records, he may have believed that NARA simply had no right to receive them at all. Prosecutors, by contrast, might argue that the statute's "reason to believe" clause suggests Trump didn't need to know that he had compromising information, only that he should have known.

We know what Trump is likely to say about such matters at his trial. If he elects to challenge Trump's assessment of his mental state at the time of the alleged crime, can the special prosecutor successfully disprove that assessment? He seems to have three avenues by which to do this, two of which appear weak.

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What may be the strongest evidence of Trump’s mens rea at one point in this saga are audio tapes of him. The indictment suggests there is a tape recording of one of at least two instances where Trump showed off the documents to people without security clearances. On the tape, recorded, per the indictment, with his knowledge and consent, Trump admits the document at hand is classified, and in a schoolboy-like way, says he should not be showing it to a writer, a publisher, and two Trump staffers. All that could be seen as a confession of sorts that what he held was NDI, not something personal. A lot depends on that tape, its admissibility in court, and whether a Florida jury ultimately takes it literally and not as just another episode of Trump bragging.

A second possible source of evidence of Trump's mens rea are statements made by his own lawyer, Evan Corcoran, both via written notes and under compulsion before the grand jury, in contravention of standard attorney-client privilege. What might the lawyer have said, and how could he have violated attorney-client privilege and still have the material appear admissible in court?

The indictment claims Trump instructed his lawyers to claim falsely he did not have the documents DOJ subpoenaed and suggested his lawyers destroy some of the documents (“pluck it out”), or just “not play ball.” Trump allegedly spoke positively of Hillary Clinton’s legal team, which deleted tens of thousands of emails while supposedly not informing her to keep her clean. A jury might find Trump’s actions—namely his active attempts to hide physical boxes of documents from investigators—speak to intent, and treat the lawyer’s statements as confirmation.

Attorney-client privilege is recognized as one of the cornerstones of fairness in our system. In the Trump case, the Justice Department used the one major exception to privilege—when the communication is intended to further a criminal or fraudulent act (the “predicate crime”)—to compel Trump’s lawyer to give evidence against his own client. Justice asserted Trump lied to his own team about having no more classified documents, and that this constituted a crime of fraud and maybe obstruction, and thus privilege is not available and Trump’s lawyer can be made to testify against his client.

The crime or fraud exception to attorney-client privilege itself has a long history, dating back to English common law. Trump's defense team will no doubt work hard to have the lawyer statements declared inadmissible, claiming without a clear finding on obstruction no crime was actually committed at that time by Trump.

The last avenue available to the prosecution to show Trump’s mens rea has some dandy complications flowering around it, and could help unravel the case to Trump’s advantage. Alongside Trump is his valet/aide, Waltine Nauta, who is charged in parallel with Trump under the Espionage Act. Any rendering of reality shows that Nauta simply was moving boxes around Mar-a-Lago at his boss’s request. That’s a long way from a crime, even considering the legal looseness of the Espionage Act. But the point in charging Nauta is not to seek to convict him; the point is to get him to accept a plea or even an immunity deal to tell everyone exactly what Trump was thinking at multiple critical points in the saga. As Trump’s closest non-blood-related aide, Nauta’s testimony would be compelling to a jury. If it shows Trump knowing he had done wrong keeping the documents, and that Trump actively used Nauta to try to hide them physically, that would be a pretty much slam-dunk case against the former president.

The problem, besides the unknown loyalty Nauta may harbor towards Trump, is that it appears DOJ leaned too hard on Nauta’s own lawyer in an attempt to get him to persuade his client to turn state’s evidence in favor of the prosecution. Nauta’s lawyer, Stanley Woodward, alleged in a court filing that during a meeting with prosecutors about his client’s case back in November, the head of the counterintelligence section of DOJ’s National Security Division, Jay Bratt, “suggested Woodward’s judicial application [for a DC Superior Court judgeship] might be considered more favorably if he and his client cooperated against Trump.” Bratt allegedly remarked that he did not think that Woodward was a “Trump guy” and that “he would do the right thing.”

Assuming this is not simply made up, this level of misconduct against a senior DOJ official could sink the Trump case, and at least remove Nauta from the picture. Woodward's a poor candidate for the accusation that he made the whole thing up; he has a golden D.C. resume to stand behind, including a decade at Akin Gump Strauss Hauer & Feld, the second-largest lobbying firm in the United States and a consistently top-ranked law firm.

So, with all that as background, ask yourself: What was Trump thinking? Answer that, and you're a long way toward knowing the resolution of the Mar-a-Lago case.