Jack Smith’s Espionage Act Charges, Part 2: Failure to Deliver
"Failure to deliver" under 18 U.S.C. § 793(e)
“Failure to deliver” and Section 793 of the Espionage Act
The legal turf is not well trodden for the “fails to deliver” element of a 793(e) offense.1
To convict on his 32 Section 793 charges, the Special Counsel must prove that:
DONALD J. TRUMP, having unauthorized possession of, access to, and control over documents relating to the national defense, did willfully retain the documents and fail to deliver them to the officer and employee of the United States entitled to receive them; that is—TRUMP, without authorization, retained at The Mar-a-Lago Club documents relating to the national defense.2 [emphasis added]
Three retention spans are alleged:
January 20, 2021-August 8, 2022: 21 counts
January 20, 2021-June 3, 2022: 10 counts
January 20, 2021-January 17, 2022: 1 count3 (only Espionage Act count not included in the original indictment)4
Under the Morison trial court’s reading of 793(e)’s “failure to deliver” element,5 11 of Jack Smith’s 32 Espionage Act counts would be defective and any reliance on 793(e) in NARA’s February 2022 referral6 would have been unfounded. The trial judge in Morison observed that the act of delivery itself negated criminal culpability:
The statute does not punish or prohibit simply being in unauthorized possession; the statute punishes those who, finding themselves in unauthorized possession, wilfully [sic] retain or fail to return to the proper government official. Therefore, an individual would not incriminate himself by publicly returning a document to the proper official, because the second element of the crime would not be present. The statute on its face therefore does not require a defendant to sacrifice his right against self-incrimination and is not unconstitutional.7 [emphasis added]
According to the Superseding Indictment’s retention dates8 and the Special Counsel’s own description of events, the document in Count 32 was “returned”9 in January 2022 and the documents in Counts 22-31 were “turned over”10 in June 2022.
”15 boxes that Trump had provided reached NARA in January 2022”11 after Nauta “took them to a commercial truck for delivery to NARA” on January 17, 2022.12 The Special Counsel referred to “15 boxes of documents that Trump returned to NARA in January 2022” in a February filing.13 On June 2, 2022, “Trump Attorney 1 contacted the Department of Justice and requested that an FBI agent meet him at The Mar-a-Lago Club the next day, June 3, so that he could turn over the documents responsive to the May 11 Subpoena.”14 “Trump Attorney 1 and Trump Attorney 3 turned over the Redweld folder containing documents with classification markings” the following day.15
Prior to being cleaved from lawful possession in 1950, unlawful possession included the language “fails to deliver it on demand to the officer or employee of the United States entitled to receive it.”16 The current lawful possession or entrustment subsection, 793(d), still requires a demand for return before criminal liability can attach.17
The prosecution recently confirmed its view that liability under 793(e) obtained on January 21, 2021.18 With respect to “entitled to receive,” Assistant Special Counsel Jay Bratt stated that NARA and “the FBI via the grand jury” qualified as appropriate destinations for a return that was never effected.19 Bratt said last year that a 793(e) defendant can plead in his own defense that ”he returned it before he was being asked to return it.”20 “Before he was being asked to return it” is extra-statutory.
Deprived of 793(d)’s requirement that delivery be made “on demand,”21 793(e)’s “failure to deliver” requirement contains no time specification. Other similarly structured statutes state the period of time within which an action must be performed, e.g., 18 U.S.C. § 2424(a),22 18 U.S.C. § 1698,23 18 U.S.C. § 1169,24 or deem something to have occurred or a presumption to arise when the prescribed period shall have elapsed, e.g., Section 408a of title 18 U.S.C., 1940 ed.,25 28 U.S.C. § 2675(a).26
Though prosecutors write in their proposed jury instructions that “the jury must find that the Government proved”27 the 793(e) element that “Trump willfully retained the document and failed to deliver the document to an officer or employee of the United States entitled to receive it,”28 they only propose an instruction on “willful retention”29 without any definition of “failure to deliver.”
In an August 2022 filing, DOJ made its first representation about the reasons for NARA’s referral:
The NARA Referral was made on two bases: evidence that classified records had been stored at the Premises until mid-January 2022, and evidence that certain pages of Presidential records had been torn up. Related to the second concern, the NARA Referral included a citation to 18 U.S.C. § 2071.30
More recently, the Special Counsel told the court in Florida that “[i]n April 2022, a grand jury in the District of Columbia began investigating potential mishandling of classified documents by Donald J. Trump.”31
To my knowledge, no public court filing has yet revealed the statutory authority the referral cited for the classified materials. In addition to 793(e), 18 U.S.C. § 1924 (“Unauthorized removal and retention of classified documents or material”) is a candidate. Apropos of Section 1924, Trump’s lawyer’s asserted in May 2022 that “the primary criminal statute that governs the unauthorized removal and retention of classified documents or material does not apply to the President,”32 while the other Special Counsel, Robert Hur, remarked that “the statute's text suggests that it should not apply to the conduct of a sitting president or vice president.”33
Investigating and bringing charges under 793(e) for returned documents reopens the 5th Amendment question the district court in Morison closed by treating “failure to deliver” as an impossibility upon a document’s return. By that court’s reading, the materials in the 15 boxes in NARA’s possession could not properly have been the basis for a 793(e) investigation, since 793(e)’s potential application ceased the moment NARA took delivery of those materials.
Transcript of Interview with David Aaron, An Update on the Trump Classified Documents Case, The Just Security Podcast, 8/10/23: “But there really hasn't been a case that I'm aware of where the exact meaning of this, or the exact limits of failure to return it, or failure to deliver it, have been explored. I don't know of anyone ever having been charged after returning a document based on the period of time between their taking it and their returning it.”
Superseding Indictment ¶ 93, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. July 27, 2023)
Superseding Indictment ¶ 93, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. July 27, 2023)
Indictment ¶ 77, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. June 8, 2023)
Memorandum and Order at 17, United States v. Morison, Crim. No. Y-84-00455 (D. Md. March 12, 1985)
United States’ Response To Motion For Judicial Oversight And Additional Relief at 5, Trump v. United States of America, No. 9:22cv-81294-AMC (S.D. Fla. August 30, 2022): “The NARA Referral was made on two bases: evidence that classified records had been stored at the Premises until mid-January 2022, and evidence that certain pages of Presidential records had been torn up. Related to the second concern, the NARA Referral included a citation to 18 U.S.C. § 2071.”
Memorandum and Order at 17, United States v. Morison, Crim. No. Y-84-00455 (D. Md. March 12, 1985)
Superseding Indictment ¶ 93, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. July 27, 2023)
Government’s Response In Opposition To Defendants’ Motion To Compel Discovery, 2/2/24, p. 13: “The Government also sought information and documents from NARA, including by issuing a subpoena for the originals contained within the 15 boxes of documents that Trump returned to NARA in January 2022.”
Superseding Indictment ¶ 72, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. July 27, 2023): “Shortly after Trump Attorney 3 executed the false certification, on June 3, 2022, Trump Attorney l and Trump Attorney 3 met at The Mar-a-Lago Club with personnel from the Department of Justice and FBI. Trump Attorney 1 and Trump Attorney 3 turned over the Redweld folder containing documents with classification markings, as well as the false certification signed by Trump Attorney 3 as custodian of records.”
Superseding Indictment ¶ 49, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. July 27, 2023): “When the 15 boxes that TRUMP had provided reached NARA in January 2022, NARA reviewed the contents and determined that 14 of the boxes contained documents with classification markings.”
Superseding Indictment ¶ 47, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. July 27, 2023): “On January 17, 2022, Trump Employee 2 and NAUTA gathered 15 boxes from TRUMP's residence, loaded the boxes in NAUTA's car, and took them to a commercial truck for delivery to NARA.”
Government’s Response In Opposition To Defendants’ Motion To Compel Discovery, 2/2/24, p. 13: “The Government also sought information and documents from NARA, including by issuing a subpoena for the originals contained within the 15 boxes of documents that Trump returned to NARA in January 2022.”
Superseding Indictment ¶ 68, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. July 27, 2023)
Superseding Indictment ¶ 72, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. July 27, 2023): “Shortly after Trump Attorney 3 executed the false certification, on June 3, 2022, Trump Attorney l and Trump Attorney 3 met at The Mar-a-Lago Club with personnel from the Department of Justice and FBI. Trump Attorney 1 and Trump Attorney 3 turned over the Redweld folder containing documents with classification markings, as well as the false certification signed by Trump Attorney 3 as custodian of records.”
Section 793(d), Act of June 25, 1948, ch. 645, 62 Stat. 737: “Whoever, lawfully or unlawfully having possession of, access to, control over, or being intrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, willfully communicates or transmits or attempts to communicate or transmit the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it…”
See also Section 31d of title 18 U.S.C., 1940 ed. (p. 2 of pdf)
Transcript Of Motions To Dismiss at 59-60, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. March 14, 2024):
THE COURT: And there is no requirement that there be a demand for the documents in order for the retention to be unlawful; is that correct?
MR. BRATT: Unlike (d), where the unlawful activity is predicated on there being a failure to return on demand; under (e), that's correct.”
Transcript Of Motions To Dismiss at 48, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. March 14, 2024):
[THE COURT:] So all of the elements are satisfied and the crime is complete as of January 21, 2021?
MR. BRATT: That as a -- as the Court states it, correct, that is correct.
Transcript Of Motions To Dismiss at 51, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. March 14, 2024):
THE COURT: Failed to return it to who?
MR. BRATT: To the official entitled to receive it.
THE COURT: Which would have been?
MR. BRATT: NARA would have been one.
THE COURT: But that's -- so as of January 21, the crime at that point is, you would have returned it to NARA at that point, day -- day after presidency ends?
MR. BRATT: As the PRA is written by -- as a matter of law, the ownership of those documents transfer to NARA.
THE COURT: Okay. So NARA is the official contemplated to whom the former president would have returned the documents?
MR. BRATT: Under the facts of this case. There is also returning them to the FBI via the grand jury.
THE COURT: Post grand jury.
MR. BRATT: Correct.
THE COURT: Okay.
MR. BRATT: But, you know, where -- that's not this case, and it would be almost an absurd situation.
Opposition To Motion For Notice And Disclosures Regarding Advice-Of-Counsel Defense, 12/29/23 p. 7 [emphasis added]: “When President Trump argued that additional time was necessary to develop his defenses and participate in CIPA litigation, the Office suggested that the available defenses were limited and straightforward. See 11/1/2023 Tr. at 54-55 (“Either he didn’t possess it, or he was authorized to possess it, or the information doesn’t contain national defense information, or he wasn’t acting willfully, or he returned it before he was being asked to return it. Those are the defenses . . . .”).”
18 U.S.C. § 793(d): “Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense…willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it”
18 U.S.C. § 2424(a): “Whoever fails within five business days after commencing to keep, maintain, control, support, or harbor in any house or place for the purpose of prostitution, or for any other immoral purpose, any alien individual to file such statement concerning such alien individual with the Commissioner of Immigration and Naturalization…” [emphasis added]
18 U.S.C. § 1698: “Whoever, having charge or control of any vessel passing between ports or places in the United States, and arriving at any such port or place where there is a post office, fails to deliver to the postmaster or at the post office, within three hours after his arrival, if in the daytime, and if at night, within two hours after the next sunrise, all letters and packages brought by him or within his power or control and not relating to the cargo, addressed to or destined for such port or place, shall be fined under this title.” [emphasis added]
18 U.S.C. § 1169: “(3) fails to immediately report such abuse or actions described in paragraph (2) to the local child protective services agency or local law enforcement agency…” [emphasis added]
Section 408a of title 18 U.S.C., 1940 ed. (p. 10 of pdf): “Provided, That the failure to release such person within seven days after he shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away shall create a presumption that such person has been transported in interstate or foreign commerce, but such presumption shall not be conclusive.” [emphasis added]
28 U.S.C. § 2675(a): “The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.”
Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32 at 14, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024)
Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32 at 15, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024)
Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32 at 17, United States v. Trump, et al., No. 23-cr-80101 (S.D. Fla. April 2, 2024)
United States’ Response To Motion For Judicial Oversight And Additional Relief at 5, Trump v. United States of America, No. 9:22cv-81294-AMC (S.D. Fla. August 30, 2022)
Corcoran letter to Jay Bratt, p. 2, 5/25/22, Exhibit 1 to Search warrant affidavit (p. 36 of pdf)
Hur Report, p. 189