Opinion | Scott Estill: Time to clean out the garage￼
A current and former president are both under criminal investigation for potential violations of The Espionage Act. To say this has never happened before would be an understatement. For you law geeks, Section 793(f) of the U.S. Criminal Code states that a person who has been entrusted with a national security document but who through “gross negligence” “fails to provide proper safekeeping or otherwise loses, steals or destroys a document is guilty of a felony.” In addition, you cannot “willfully” retain national security documents when an officer of the United States demands their return. This is a serious crime, as the term of imprisonment can be as long as 10 years. Given the magnitude of these investigations, you would think there would be a lot of noise in Washington about national security concerns. You would be wrong.
Hypothetical investigation 1: This person is an 80-year-old male who worked in the White House for eight years and left in 2016 when his employer could not seek reelection. During the chaos of packing up his boxes, a few files ended up in some strange places, including a storage locker, his personal garage and personal library. The person (suspect one) claims to have no idea how these documents got to these shall we say “less than secure” places. The suspect (who now is the president of a major country) appeared on “60 Minutes” last fall and said our former U.S. president was “totally irresponsible” for the way he carelessly handled classified documents after he lost his reelection campaign. In fact, he said: “how could anyone be that irresponsible.”
This investigation started after the suspect’s lawyers found classified documents (in other words, stuff the government doesn’t want anyone to see, including foreign governments and us U.S. citizens) when clearing out a storage locker in his office. Seems like an expensive way to clean out an office but who am I to question the expenses of the rich and powerful? These documents were discovered a mere six days before the midterm elections of 2022 and were provided to the FBI shortly after the election. This investigation became public knowledge on Jan. 9, 2023. After this point, additional documents (now totaling 20) have been found in a home library/office and a locked garage (with his corvette and a few assorted, expected and discarded garage items). The investigation is ongoing.
Hypothetical investigation 2: This person is a 76-year-old male who worked in the White House for four years and left when he lost the 2020 election. Following his defeat, a few boxes of national security documents happened to get mixed in with some other personal items. These files ended up on three pallets of boxes in this person’s (suspect two) home in the southern U.S. Following the suspect’s refusal to return what was later determined to be 325 classified documents, the U.S. Department of Justice authorized, and a Federal Judge issued, a search warrant to secure the first batch of documents. There have been other documents recovered following the search warrant. The suspect has at various times claimed that the classified documents had been mentally declassified, that the FBI planted the documents at his home and that the documents were a “cool keepsake.” The investigation is ongoing.
Who cares? It doesn’t take a lawyer at $500 per hour for you to realize that if you or I were the suspect in either one of these totally hypothetical investigations we would be begging for a plea bargain of guilt with a large fine and no jail time. However, these are no ordinary Joes (so to speak). If the 2024 presidential election were held today, both suspects would be favored to capture their party’s award for their candidate of choice. How sad. How pathetic.
At best, suspect one is a bit confused and careless concerning his handling of national security classified documents. Even so, storing these documents in a garage would seem to be a relatively easy case of “gross negligence.” Perhaps this suspect’s lack of mental clarity would prevent the prosecution from obtaining a conviction. He also managed to have the FBI clean out his garage at no charge.
With respect to suspect two, his case is a bit trickier in that the failure to cooperate and his lies to the Department of Justice are additional issues that suspect one seems to lack at this point in the investigations. Refusing to turn over documents would probably satisfy the “gross negligence” or “willful” standard. Like suspect one, this suspect’s lack of mental competence may also prevent a conviction, as acting childlike with narcissistic delusions is a tough conviction from a prosecutor’s standpoint.
Of course, the worst-case scenario for both of the suspects is that they are convicted of at least one felony and ordered to pay a large fine. It is unlikely that a judge would require any actual jail time given the suspects’ ages and frail mental conditions. Yet the worst case for us as American citizens is the prospect that either or both of these incompetent and/or criminal suspects will again be the choice in 2024. We’ve been warned.
Scott M. Estill’s column “Challenges, Choices, Changes” publishes biweekly on Thursdays in the Summit Daily News. Estill is an attorney, author, and public speaker who lives in Dillon when not traveling or attending to legal matters in Denver. Contact him at email@example.com.
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