Weekend Reads | A Model for Prosecuting Trump

by Kevin Schofield

Many of us have spent the past several weeks wondering what is going on behind the scenes at the Department of Justice as it tries to move forward with its investigation of former President Donald Trump and his removal of government documents to Mar-a-Lago. The tight-lipped DOJ has given us only a few clues as to the status of its case: a handful of court filings to a federal judge and the "special master" appointed to review the evidence it seized in its search, and, more recently, the appointment of a special prosecutor to handle the case now that Trump has declared his candidacy for the 2024 presidential election. We, of course, want to know if Trump will ultimately be charged — and if so, when.

Two weeks ago, a group of high-powered attorneys, several with firsthand knowledge of how the DOJ operates, gave us a key insight by publishing a model prosecution memorandum (or "pros memo" in DOJ parlance) for charging Trump. A prosecution memo is written by the department's lawyers and staff to summarize the case, analyze the facts and law, and draw conclusions about whether it should move forward to file charges — as well as which charges to file.

While none of the model prosecution memo's authors are currently employed by the DOJ, let alone working on the case, their document is a very interesting read, because it gives us a unique insight as to how government prosecutors are likely approaching the case and the issues they are probably struggling with. According to the authors, they structured it using the same general outline the DOJ uses for its internal documents:

• Known and Reported Facts
• The Law — Relevant Federal Offenses
• Application of the Facts to the Law
• Department of Justice Precedents (i.e., previous similar cases)
• Defenses

The authors clearly acknowledge that they are writing this as outsiders, based on incomplete information: They are working only with news reports, court documents, and Trump's own (often self-incriminating) public statements and social media posts. Whereas the DOJ has a much broader set of information: all the documents recovered from Mar-a-Lago, unreleased testimony from several witnesses and involved parties, and detailed accounts of the National Archives staff's attempts to recover the documents and the FBI officers' records of the Mar-a-Lago search itself. But that difference in information cuts both ways: The DOJ may have substantially more information that points to Trump's guilt, but it might also have exculpatory information that clears him of some or all charges or that points to the inadmissibility of some of the evidence.

As to the charges that might be filed, the memo starts with the ones listed in the original search warrant related to violations of the Presidential Records Act and possession of sensitive defense information, as well as obstruction of justice; but it also suggests a few other federal laws that Trump may have violated based upon the public information in the case.

Two sections of the memo are particularly interesting reading: the section on "Application of the Facts to the Law," and the one on Trump's potential defenses. The authors go into great detail in explaining the thresholds prosecutors are required to meet to prove their case and assessing which of the facts help or hurt their case related to each charge. They also point out a couple of potential defenses Trump's lawyers could invoke, but to date have not — and some of the reasons why they may choose not to in the end. Together, they provide immense help in understanding why it has taken so long for the DOJ to move the case forward.

In the end, though, they conclude — with appropriate caveats, given their incomplete information — that there is a strong case for charging Trump with multiple felonies.

Shortly after they published their model prosecution memo, Attorney General Merrick Garland announced that he was appointing Jack Smith as special prosecutor to handle the Mar-a-Lago documents case, as well as any potential federal prosecution of Trump related to his actions on Jan. 6, 2021. Subsequently, the authors wrote that they welcome the appointment of a special prosecutor and expect it will lead to charges ultimately being filed; they also express their hope that their model prosecution memo will "point the way" for Smith's work on the case.

Mar-a-Lago Model Prosecution Memo

Featured image by alexskopje/Shutterstock.com.