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Proving Intent at Mar-a-Lago

Without establishing former President Trump’s intent, it will be impossible to sustain a criminal case against him.

(Photo by GIORGIO VIERA/AFP via Getty Images)

The three things that matter most in the Trump Mar-a-Lago case are intent, intent, and intent. Trump's intent—not so much what he did with classified documents, but what he intended to happen based on his actions—will decide his innocence or guilt if the case ever comes to court. The documents themselves matter much less, and are almost a red herring.

Wholly separate from January 6 and any other legal action against Trump, the Mar-a-Lago search warrant cites three sections of law as justification, meaning any prosecution arising from the documents found in the search will likely be brought under one or more of these— a road map to a possible prosecution. On its face, it seems that if at least some of the documents found were marked classified, and Trump’s declassification argument is not accepted, then he will be pretty close to guilty. You can see an example of the hathotic glee at this prospect here.


But there is one more step to prove, often overlooked in Twitter analysis, and that is intent. The concept of intent is planted throughout American law and holds that to establish many crimes (including incitement, most forms of tax evasion, and sedition), the accused must have not only committed some objectively criminal act, like stirring up a crowd that proceeds to commit violence, but he had to have done it with a criminal purpose in mind. Intent separates the "what" from the "why." It's the difference between a mistake, error, or misstatement, and an actual crime. The action itself is often easy to prove, while the thought pattern—what was in someone's head, the mental objective behind an action—much less so. Based on the laws cited on the search warrant, it is what matters most in Mar-a-Lago.

The three laws mentioned in the Mar-a-Lago search warrant all specifically require proving intent—Trump's mental objective in taking a classified document—or its equivalent:

The first law cited, 18 U.S.C. §§ 793, titled "Gathering, transmitting or losing defense information," says (emphasis added), that "Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation... copies, takes, makes, or obtains... anything connected with the national defense" has violated federal law. Intent is mentioned repeatedly throughout the law, sometimes restated as purpose, reason, and the like. This law is part of the infamous Espionage Act of 1917, parts of which also include a gross-negligence standard, meaning a prosecutor does not have to prove specific intent in all cases.

The second law, 18 U.S.C. §§ 2071, titled "Concealment, removal, or mutilation generally" says that the act must be (emphasis added) "willful and unlawful." This statute also states anyone who violates it should be disqualified from holding public office, but while that issue would likely get litigated in court, legal scholars broadly believe it couldn’t be used to stop Trump from running for president again in 2024. Article II of the Constitution alone prescribes the requirements to run for president.

The third law, 18 U.S.C. §§ 1519, the “anti-shredding provision,” imposes criminal penalties on anyone who (emphasis added) “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede or obstruct an investigation."


Intent as far as we (and Trump) are concerned, almost always means specific intent, as opposed to general intent. General intent means the prosecution must prove only that the accused meant to do an act prohibited by law. Whether the defendant intended the act's result is irrelevant. Specific intent means the accused intentionally committed an act and intended to cause a particular result, a wrongful purpose, when committing that act (see U.S. v. Blair). Merely knowing that a particular result is likely isn't the same as specifically intending to bring it about (see Thornton v. State). Note that none of the laws mentioned above require that the documents in question be classified, though it would be hard to imagine prosecutors proving that unclassified documents rise to the level of "injuring the United States."

In Trump's case, based on what we know publicly, the arguments about intent might play out as follows. On the first charge, the Espionage Act, prosecutors would need to show he kept classified or other national-security-related information at Mar-a-Lago with the intent to cause injury to the United States. Similarly, for the third charge, prosecutors would need to show that Trump kept classified or other national-security information at Mar-a-Lago with the intent to impede or obstruct an investigation. The second charge seems more geared toward general intent—that is, that Trump kept classified or other national-security information at Mar-a-Lago with the knowledge it was wrong without necessarily intending a specific outcome (actus reus), such as injury to the U.S. or obstructing an investigation. Each of these are difficult to prove in court.

Much of this nuance is over-looked by the Twitter analysts, who always assume the worst of Trump's intent, so much so they need not prove anything. For example, one blue check wrote, "Will Donald Trump finally face something approximating justice for his five decades or more of apparent and aggressive lawlessness, culminating in a criminal presidency and an attempted coup, with the possibility of treason and criminal espionage? Will the American people finally be rid of this meddlesome would be tyrant-king with millions of followers, leader of a neofascist movement that is literally threatening to uproot and destroy American democracy?"

Hyperbole aside, the critical question returns to whether or not prosecutors could prove specific intent on Trump's part for the more serious charges, items one and three above. Proving a state of guilty mind, mens rea, would be the crux of any actual prosecution based on the Mar-a-Lago documents. In other words, what was Trump thinking at the time? Did he have specific intent to injure the United States (charge one) or to obstruct some investigation (charge three)? Without knowing the exact nature of the documents this is a tough task, but even with the documents in front of us it would be difficult to prove to a court's satisfaction what Trump wanted to do by keeping the documents, which would require coworkers and colleagues to testify to what Trump himself had said at the time, which is unlikely to happen. It is thus unlikely, based on what we know at present, that Trump would go to jail for storing the documents in Mar-a-Lago.

Take, for example, the charges of tax evasion now levied again the Trump Organization. Trump Organization CFO Allen Weisselberg, as part of a plea deal, will agree to testify against the Organization but not Trump himself as to why the Organization paid certain compensation in the form of things like school tuition, cars, and the like, outside the tax system. It will be a bad day for the Organization but, loyal to the end, Weisselberg will not testify as to his boss's mental state. It is equally unclear who would be both competent and willing to do so against former President Trump. Blue enthusiasm aside, Trump won't go to jail over any of this.

The final questions are probably the most important. DOJ knows what the law says, and that raises questions about federal agents’ motives. If knowing the chances of a serious conviction are slight, why would the Justice Department take the Mar-a-Lago case to court? And why would the FBI execute a high-profile search warrant in the first place? To gather evidence unlikely ever to be used? No one is above the law, but that includes the DOJ as well. The justice system cannot replace the electoral system in choosing the next president.


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