After the initial indictment of former President Donald Trump in the classified documents case, one of us (Bridgeman) wrote an analysis with Brianna Rosen in Just Security assessing the national security implications of the underlying conduct alleged in the indictment. Last week’s superseding indictment includes new charges that have rightfully received significant attention from criminal law experts. In addition to issues of criminal justice and accountability, however, an important dimension, once again, is the risks to U.S. national security posed by the underlying conduct. We identify two types of national security concerns posed by the alleged conduct in the new set of charges.
Attempted Destruction of Security Camera Footage
The specific conduct in question is Trump and his aides’ alleged attempt to delete security camera footage at the Mar-a-Lago resort. There is no evidence in the indictment that the attempt was successful. On the contrary, the Justice Department was able to obtain video footage that helped to demonstrate that, following the issuance of a grand jury subpoena for all documents marked as classified, Trump’s aides moved approximately 64 boxes out of the storage room to Trump’s residence and brought only 30 boxes back to the storage room. The 30 boxes were brought to the storage room on June 2, 2022. That was the day before Department of Justice (DOJ) officials came to Mar-a-Lago to gather classified documents pursuant to the subpoena and were allowed to look inside the storage room. Following the June 3 visit, the Justice Department issued a subpoena for the security camera footage that included video of the outside of the storage room and who passed into and out of it. In response to the subpoena, Trump and his aides allegedly tried to delete the video footage.
Two significant national security risks flow from this alleged conduct.
1. The coverup (obstruction) is not worse than the crime (Espionage Act) – it facilitated the ongoing criminal conduct.
The attempted destruction of the video recordings was not just a coverup of the underlying crime of having unlawfully retained national defense information. Properly understood, it was also a means to continue that underlying conduct. Put another way, the attempt to delete the footage would not simply have served to hide past wrongdoing. It also could have prevented the FBI and other federal authorities from knowing that Trump continued to hold onto dozens of more highly classified materials – e.g., the boxes of materials that were never returned to the storage room, including the materials recovered during the FBI search of Mar-a-Lago in August 2022.
As Bridgeman and Rosen outlined in detail in the prior Just Security article, the continued retention of those highly classified documents in an unsecure environment and without the intelligence community knowing exactly what was missing posed enormous risks to U.S. national security. The effort to destroy the video footage should be understood as facilitating that result.
The initial indictment laid out in great detail the sensitivity of the documents Trump retained in the boxes at Mar-a-Lago, including “information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and to plans for possible retaliation in response to a foreign attack.” As Bridgeman and Rosen wrote:
Compromising these types of intelligence streams could lead to an irreplaceable loss of technical or human access that took years and significant resources to develop. And that also entails a corresponding loss of insight into sensitive programs, leadership dynamics, and intent on the part of foreign governments (including adversarial ones) and their leaders. Some of the implicated intelligence streams could also be crucial for the defense of the United States, its allies, and its forces abroad.
2. The surveillance video as a tool for understanding who had access to the classified documents.
As the government explained in court filings, the U.S. Intelligence Community conducted a damage assessment and risk mitigation following the intelligence breach posed by Trump’s retaining classified documents at Mar-a-Lago (and transporting some of the material to and from Bedminster). One of the most challenging parts of that damage assessment is determining who might have had access to the materials, for how long, and under what conditions (i.e., whether visitors were left alone in the room with cell phones or other recording devices). Those facts are crucial to assessing the extent to which U.S. intelligence programs, human sources, and technical collection streams may have been compromised. The surveillance footage presumably would play a valuable role in making such assessments. The purposeful destruction of such a source of information would thus pose its own significant concerns for the continued viability of sensitive intelligence operations and U.S. national security more broadly.