This model prosecution memorandum assesses potential charges federal prosecutors may bring against former President Donald Trump. It focuses on those emanating from his handling of classified documents and other government records since leaving office on January 20, 2021. It includes crimes related to the removal and retention of national security information and obstruction of the investigation into his handling of these documents. The authors have decades of experience as federal prosecutors and defense lawyers, as well as other legal expertise. Based upon this experience and the analysis that follows, we conclude that Trump should–and likely will–be charged.
Before indicting a case, prosecutors prepare a prosecution memo (or “pros memo”) that lays out admissible evidence, possible charges, and legal issues. This document provides a basis for prosecutors and their supervisors to assess whether the case meets the standard set forth in the Federal Principles of Prosecution, which permit prosecution only when there is sufficient evidence to obtain and sustain a conviction. Before a decision is made about bringing charges against Trump (and co-conspirators, if any), prosecutors will prepare such a memo.
There is sufficient evidence to obtain and sustain a conviction here, if the information gleaned from government filings and statements and voluminous public reporting is accurate. Indeed, the DOJ is likely now, or shortly will be, internally circulating a pros memo of its own saying so. That DOJ memo will, however, be highly confidential, in part because it will contain information derived through the grand jury and attorney work product. Since it will not be publicly available, we offer this analysis. Ours is likely more detailed than what DOJ will prepare internally for explanatory purposes. But, given the gravity of the issues here, our memo provides a sense of how prosecutors will assemble and evaluate the considerations that they must assess before making a prosecution decision.
Our memo analyzes six federal crimes in depth:
Mishandling of Government Documents
1. Retention of National Defense Information (18 U.S.C. § 793(e))
2. Concealing Government Records (18 U.S.C. § 2071)
3. Conversion of Government Property (18 U.S.C. § 641)
Obstruction, Contempt, False Information
1. Obstruction of Justice (18 U.S.C. § 1519)
2. Criminal Contempt (18 U.S.C. § 402)
3. False Statements to Federal Investigators (18 U.S.C. § 1001)
In the course of discussing these statutes, we also touch upon others that may have been violated but where the factual predicate for applicability is less clear. For instance, additional charges could be appropriate–under 18 U.S.C. §§ 798 and 793(e) (dissemination)–if the public reporting regarding Trump’s having intentionally disseminated classified material to aides and others is accurate. Additional charges could also potentially be brought under 18 U.S.C. § 1924 if there is sufficient evidence that Trump unlawfully removed classified documents from the White House (see our discussion of DOJ precedents for past prosecutions under § 1924 in Part IV and in the Appendix). Based on the publicly available information to date, a powerful case exists for charging Trump under several federal criminal statutes, which we discuss in detail.
Methodology
In considering prosecution of a former president, we begin with the standard articulated by Attorney General Merrick Garland: “upholding the rule of law means applying the law evenly, without fear or favor.”[1] In other words, this case must be evaluated for prosecution like any other case with similar evidence would be, without regard to the fact that the case is focused on the conduct of a former president of the United States. This memo accordingly includes a balanced assessment of this particular case, and a thorough review of past DOJ precedents for charging similar cases. Those past cases show that to decline to bring charges against Trump would be treating him far more favorably than other defendants, including those who were charged for less egregious conduct than his. “All Americans are entitled to the evenhanded application of the law,”[2] Garland has stated, and we are guided by the values underlying those words as well.
This model prosecution memo is, however, limited in an important sense. Throughout the memo, we draw as much as possible on the unusual amount of factual information provided by the Government in its court filings. We do not, however, have visibility into the full volume of information the Justice Department has assembled. That means we could be missing important facts, including exculpatory evidence, that may inform the DOJ’s decision-making process. We may be unaware of admissibility issues with some of the evidence. And equally true, the evidence could be better or more extensive than what is available in the public record.
What’s more, by necessity, we at times rely on news reports from investigative journalists whereas the actual prosecution memo would instead rely on direct evidence the federal investigators have collected. For that reason, we do not reach an unqualified charging decision. Instead, we conclude that there is sufficient evidence to obtain a conviction here, if the Government filings and statements and voluminous public reporting we detail below are accurate. We also note that, based on the reported facts, charges would be strongly warranted based on Department precedent in similar cases.[3]
The model prosecution memorandum is available below as a SCRIBD file and also as a separate PDF.
Also, to hear more about the memo from some of its co-authors check out the Just Security podcast. A conversation with Andrew Weissmann, Joyce Vance, and Ryan Goodman.
Model Prosecution Memo – Trump Classified Documents Second Edition June 2023 by Just Security on Scribd
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[1] Department of Justice, Attorney General Merrick Garland Delivers Remarks (Aug. 11, 2022), https://www.justice.gov/opa/speech/attorney-general-merrick-garland-delivers-remarks.
[2] Id.
[3] Two of the authors of this model prosecution memo, Norman Eisen and Fred Wertheimer, were among the counsel for amici supporting DOJ’s position in litigation before the U.S. District Court for the Southern District of Florida, and the U.S. Court of Appeals for the Eleventh Circuit, related to the criminal investigation mentioned in this report. For more information, see https://democracy21.org/category/news-press/press-releases.
