WASHINGTON — FBI investigators who searched Harold Martin’s Maryland property in the fall of 2016 found classified documents — including highly classified material — strewn about his home, car and storage.
Unlike former President Donald Trump, the former NSA contractor did not contest the allegations, eventually pleading guilty in 2019 and admitting that his actions were “wrong, illegal, and highly questionable.” But his expression of remorse and admission of guilt to one count of willful retention of national defense information did not absolve him of the harsh nine-year sentence.
The resolution of this case looms as an ominous testament to the legal peril Trump could face as he faces 37 criminal charges — 31 under the same century-old Espionage Act used to prosecute Martin and other defendants who allegedly illegally kept classified documents. Even many like Martin who pleaded guilty and accepted responsibility nonetheless faced prison sentences of years.
“When they decide to pursue a case of willful mismanagement, it sends a message that we take these cases very seriously,” said Michael Zwieback, a defense attorney and former DOJ attorney. “They always go to jail.”
It is impossible to say how long the former president might face if convicted, with such a decision ultimately up to the trial judge — in this case, the Trump appointee who has already shown a willingness to rule in his favour. It is also difficult to know to what extent other factors might have played a role – including the logistical and political complexities of imprisoning a former president.
The Espionage Act offense carries a penalty of up to 10 years in prison, although it is rare for first-time federal offenders to come close to that limit. But beyond retention, prosecutors have also identified several aggravating factors in Trump’s alleged behavior, accusing him of seeking to recruit others — including an attorney and his aides — to hide records from investigators and display some to visitors. Some of the other charges in the indictment, including conspiracy to obstruct justice, carry sentences of up to 20 years in prison.
Justice Department prosecutors in recent years have used the Espionage Act provision against a variety of defendants, including a West Virginia woman who kept an NSA document related to a foreign government’s military and political issues. Elizabeth Jo Shirley pleaded guilty in 2020 to a charge of willful detention and was sentenced to eight years in prison.
This month, a retired Air Force intelligence officer named Robert Birchum was sentenced to three years in prison after pleading guilty to keeping classified files at his home, his officer’s overseas quarters, and a storage room in his driveway.
Many of the defendants pleaded guilty, rather than face trial, although not all were jailed. Trump — who also faces hush-hush payments charges in a New York state court — has shown no indications he might be moving toward a plea deal, staunchly insisting he is innocent and personally attacking Justice Department special counsel Jack Smith hours after he appeared in court. Miami Federal Court Tuesday.
Despite the details in the indictment, Trump has some avenues to try to challenge the charges.
For one thing, he drew Justice Eileen Cannon, who sided with Trump last year in the former president’s attempt to appoint a private master to conduct an independent review of the seized classified documents. Citing the “stigma” that she said was attached to the FBI’s search of Trump’s home, she said that a “future indictment” based on items that should have been returned to Trump “would result in reputational damage of an entirely different order of magnitude.”
A three-judge panel of the US Court of Appeals for the Eleventh Circuit unanimously overturned its ruling, which legal experts have widely criticized as exceptional and unusually broad.
Over the next several months, Cannon will make decisions that will shape the trial, including how quickly it can happen and whether any evidence will be preserved.
Prosecutors also face the challenge in Florida – where Republicans have made a steady lead in recent years – a jury likely to be more favorable to Trump than if the case were tried in overwhelmingly Democratic Washington.
However, Steven Saltzburg said, “I think it might be very good for Jack Smith to welcome a jury to Florida because if there was a conviction, it would be very difficult to say, ‘Well, this jury was anti-Trump in a way’.” George Washington University and a former Department of Justice official.
Experts expect Trump’s lawyers will echo the former president’s public statements in their attempt to dismiss the case by arguing that he is entitled to the documents and is a victim of prosecutorial overreach. Trump may also try to block prosecutors from using key evidence, such as notes from his lawyer detailing conversations with the former president.
Experts say Trump’s attorneys may try a so-called “jury void” if the case goes to trial or try to convince jurors that he should be acquitted even if they think Trump broke the law because the violation was not serious enough to warrant charges. It is highlighted.
“The subject matter of the defense can be full of proposals for unfairness and selective prosecution — basically trying to convince the jury that even if the former president did what the government says he did, none of this would end up in a criminal trial,” he said. Robert Mintzdefense attorney and former public prosecutor at the Ministry of Justice.
Robert Kellner, a Washington criminal defense attorney, said that while an outright acquittal seems unlikely given the volume of evidence, there is a path to mistrial if Trump’s lawyers can convince a single juror of innocence on the grounds that the president has ultimate power to declassify the information. .
That power ended the moment Trump left the presidency, but even so, “some jurors will likely find it difficult to justify convicting him of something he previously had the absolute power (to do) simply because he didn’t file the correct forms and do it in the future,” Kellner said. the right time.”
Ultimately, faced with a mountain of evidence and the prospect of years in prison, said Cheryl Bader, a former federal prosecutor and chair of the criminal offenses division at Fordham University Law School, Trump’s best hope may be a tactic he often follows: delay, delay, delay. Defense Clinic.
“His best defense may be to try to bypass the election cycle, to be elected president, and thus be in charge of the Ministry of Justice before the case goes to trial,” she said.


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