How will the Department of Justice decide whether charges are merited against the former and current president for mishandling of government documents? The DOJ will determine whether there is sufficient evidence satisfying each element of the relevant federal criminal statutes — and how like cases have been treated by the Department in the past. That is, they will look to DOJ charging precedent, including when charges were and were not brought.
Analysis of these precedents was previously examined by a team of Just Security legal experts, including the co-authors, with regard to the facts known about the former president. We concluded that prosecuting Donald Trump would not only be called for by that precedent, but compelled by it. In fact, many who engaged in significantly less egregious conduct have been subject to criminal prosecution. (Our model prosecution memo can be found here).
In light of the Biden government documents contretemps, it is also useful to reexamine DOJ precedent to see how the facts currently known about the Biden documents stack up. Because of its apparent factual and legal similarities, the DOJ’s prosecution decision regarding former Attorney General Alberto Gonzales is a precedent particularly worthy of comparison.
The Justice Department decision to decline prosecution of Gonzales points to a similar outcome for President Joe Biden.[1] Indeed, certain facts in the Gonzales case were more egregious and incriminating, including evidence of his specific knowledge and personal handling of highly classified material outside of an appropriate classified facility.
The Gonzales Declination Precedent
What is known about the Gonzales case comes primarily from a 2008 DOJ Inspector General (IG) report, plus certain supplemental sources. There is little direct information about the DOJ’s internal reasoning in declining to prosecute. But the inferences we can draw from the facts of the case and of course the outcome are highly instructive.
The IG found that Gonzales wrote notes about classified documents (which renders the notes classified as well). Discrete segments of his notes contained highly classified information – 4 out of 21 paragraphs contained Top Secret/SCI information about an NSA codeword surveillance program — but the remaining paragraphs were unclassified.
Then, in February 2005, when Gonzales, who had been serving as the White House Counsel, became the Attorney General, he took those notes with him. The matter provoked an IG investigation because he improperly retained those notes in unapproved locations. That investigation revealed that he took the notes from the White House to his home in a briefcase, and apparently did not put the documents in his home safe. After a short period of time, he took the notes to his DOJ office, but did not put them in a SCIF, but rather in his AG office safe, which was authorized to contain Top Secret information, but not authorized to contain more highly classified information. In the office safe, the IG found another 17 classified documents marked Top Secret/SCI, which should not have been kept there. Thereafter, Gonzales did not fail to deliver the documents on demand to an officer of the United States entitled to receive them. Gonzales made the notes he took home and the material in his office safe available to investigators. Finally, although there was some evidence that Gonzalez may have lied to investigators, there was no conclusion that Gonzales lied or otherwise obstructed the IG or DOJ in their investigation (more on this, below).
The proof of intentionality was unclear and harder for the DOJ to establish, particularly with respect to the 17 documents found in his DOJ safe. As to the 17 documents, there was no evidence Gonzales understood the safe was not approved for storage of highly classified information. Indeed, Gonzales denied knowing that the safe was not an authorized locale: “Gonzales told the OIG he believed it was appropriate to store the documents in the safe outside his office, and that he had never been told otherwise,” according to the IG report.
The evidence with respect to the notes was more fraught. Gonzales himself said he had not thought his notes contained classified information. And aside from the notes being at his home for a short time, he stored the notes and the other 17 documents in a relatively secure environment – a DOJ safe at Main Justice. But although Gonzales denied such an intent, the facts there do allow the opposite inference: that he knowingly transported the documents to his home and then to his office, and by placing them in a top secret (but not TS/SCI) safe at DOJ, evidenced his knowledge that the notes were indeed classified and needed to be kept in a secure location. Further, Gonzales “told the OIG that he used two envelopes to double-wrap the notes. Gonzales stated he may have written an abbreviation for the codeword of the program on the inner envelope. On the outer envelope, Gonzales said that he wrote “‘AG – EYES ONLY – TOP SECRET.’” In addition, “the NSA official responsible for classifying the notes told the OIG that one aspect of the program explicitly referred to twice in the notes was ‘zealously protected’ by the NSA and that designating these references TS/SCI was ‘not a close call.’”
One more element of the Gonzales case is significant. Gonzales apparently did not self-report his mishandling of the classified material. Instead, he appears to have inadvertently brought it to the attention of the White House Counsel. He presented the notes to them for other purposes related to congressional hearings. When asked about where he had kept the notes, he told the White House Counsel, he “wasn’t sure where they were,” and that “he thinks he may have taken them home.” That set off alarm bells, and the White House Counsel proceeded to notify the NSA and Justice Department.
The initial IG report references only 18 USC 1924 misdemeanor statute as relevant, and placed an emphasis on Gonzales’s having brought the notes to his residence as pertinent to that legal analysis. According to a subsequent IG report, the DOJ also considered 18 USC 793(f)(1) which applies to an official’s “gross negligence” in mishandling sensitive national security information. DOJ declined to prosecute under either or any other statute.
Comparing the Gonzales and Biden Cases
The comparison to what is known about the Biden documents is instructive.
There is no evidence to date that Biden had any knowledge that government documents were taken from the White House or any intent to take any government documents from the White House, let alone classified government documents. By contrast, Gonzalez personally took the notes home and then to DOJ. Neither Gonzales nor Biden are known to have lied to investigators or to have sought to obstruct the return of the government documents to a secure location. That said, unlike Biden, there was evidence Gonzales may have not been fully candid about his intent. “Gonzales said he did not recall thinking that the notes were classified and said that he did not think to mark the notes as classified,” according to the IG report. That statement is hard to square with the evidence of how he handled and marked the notes. And Gonzales did not deliberately bring to the attention of the government that he had kept classified materials in an unsecure and unauthorized location.
Apart from Gonzalez’s statement claiming he did not know the notes were classified, both Gonzales and Biden appear to have been cooperative with the investigation, and not sought to hide documents from investigators. And even though the Biden documents were in an unsecure location for a longer duration than the notes improperly taken by Gonzales, there is no evidence to date that Biden knew that fact – similar to Gonzalez being unaware that his office safe was not an authorized location for storage. In other words, one was unaware of the nature of the documents and another was unaware of the nature of the storage facility limitations. Moreover, upon discovery of such government documents, they were promptly made available by Biden’s lawyers to the Archives or the DOJ.
How the Department of Justice Should Proceed
In short, because DOJ must seek to treat like cases alike, the Gonzales declination appears to be a precedent that will weigh heavily in favor of DOJ closing its Biden investigation without a charge. There is nothing that would or should prevent the Attorney General publicly announcing such a conclusion, as it would not raise the issue that led Robert Mueller to make no recommendation with respect to evidence that did suggest a crime had been committed. Finally, the DOJ opinion that a sitting president is immune from indictment (something that is by no means a given, but need not be challenged here) counsels in favor of a very prompt resolution of the matter: the basis of that DOJ view with respect to a sitting president is that such action would unconstitutionally hamstring the chief executive and commander in chief from carrying out the nation’s business. On that logic, if the special counsel determines there is no criminal case here, he and the Attorney General to whom he reports should wrap up the investigation with dispatch.
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[1] We reach this conclusion independent of the DOJ position that a sitting president cannot be indicted.