Why Wasn't Trump Quickly Arrested in Classified Docs Case?
We catalog the swift justice meted out to others caught hoarding secret documents, showing Trump's unprecedented kindly treatment by the feds.
ON AND ON AND ON IT GOES—the federal effort to bring disgraced former President Trump to justice for what, in cases involving many others less protected, has resulted in swift arrests and severe consequences, including the immediate loss of jobs and security clearances, stiff fines and even jail. Now we’ve learned that investigators believe the prince of Mar-a-Lago, or his onetime chief of staff, Mark Meadows, absconded from the White House with ultra-sensitive documents relating to Russian interference in the 2016 elections. adding urgency to the probe.
The government’s discovery of Trump’s mere hoarding of classified documents, not to mention the ensuing coverups, should have been a slam dunk, open-and-shut, quickly resolved case of mishandling and lying about his illegal retention of classified documents. But no. As with all the other indictments he’s facing in New York and Georgia, Trump lawyers have adopted Washington’s cardinal rules of dodging accountability: Admit nothing, deny everything, make counter accusations.
Trump is hardly the first official to be prosecuted for such crimes under the Espionage Act of 1917 (which should have been replaced decades ago with legislation that clearly segregates real spy cases from the rest, if only for the public’s understanding). He’s merely the highest ranking one. Whatever, defendants caught red handed usually quickly plead out.
Examples abound. In June, Kate Hussey, a reporter with WPTV in West Palm Beach, Florida, did us all a somewhat dyspeptic favor by compiling a list of several cases of officials prosecuted for illegally possessing classified documents, all of whom were quite swiftly charged, prosecuted and sentenced. The Voice of America compiled its own list, under the headline, “FBI, Justice Department Routinely Prosecute Misuse of Classified Documents.” You get the point.
Here at SpyTalk, we’ve updated and annotated the lists, if only as a reminder that Trump, despite all his witch-hunt whinging about unfair treatment in his stolen documents case, has been afforded unprecedented, kindly treatment by the feds.
Take the case of Sandy Berger.
In 2004, news broke that former Clinton White House National Security Adviser Samuel R. Berger had secretly lifted five different copies of a classified document related to the administration’s handling of terrorism from the National Archives reading room. Judgment was swift: He was forced to resign immediately as a foreign policy advisor to presidential candidate Sen. John Kerry and then, in April 2005, pled guilty to misdemeanor charges of stealing and hiding the documents. Along the way he had to forfeit his law license, his security clearance for three years, pay a $10,000 fine and perform community service for two years under probation. Berger eventually recovered, going on to work as a foreign policy advisor for Hillary Clinton’s 2008 presidential campaign and serving on the boards of various non-profits, think tanks, and investment firms before his death in 2015.
The NSA Whistleblowers
The government’s torment of three NSA whistleblowers falls a bit outside the box of illegal document-retention cases, but deserves mention for what can happen when prosecutors merely suspect somebody is misusing classified documents.
For several years Thomas Drake, a senior executive at the eavesdropping National Security Agency, and two NSA colleagues, William Binney and J. Kirk Wiebe, had internally campaigned against an overpriced, unproven surveillance data-collection program called Trailblazer, created by NSA contractors, which after 9/11 was employed to conduct warrantless electronic searches on the private communications of millions of Americans. After The New York Times and Baltimore Sun revealed elements of the illegal program, government gumshoes focused on those three, along with Diane Roark, a congressional staffer, as leakers. What happened next beginning in July 2007 is a long and convoluted story covering years, but for our purposes, here’s how investigators used goon tactics against those suspects, in stark contrast to the kid-gloves treatment afforded Trump, who’s charged with far more disturbing crimes, according to the Government Accountability Project, a private group that supports whistleblowers:
FBI officers held a gun to Binney’s head as he stepped naked from the shower. He watched with his wife and youngest son as the FBI ransacked their home. Later Binney was separated from the rest of his family, and FBI officials pressured him to implicate one of the other complainants in criminal activity. During the raid, Binney attempted to report to FBI officials the crimes he had witnessed at NSA, in particular the NSA’s violation of the constitutional rights of all Americans. However, the FBI wasn’t interested in these disclosures. Instead, FBI officials seized Binney’s private computer, which to this day has not been returned despite the fact that he has not been charged with a crime.
Meanwhile, Wiebe’s family was subjected to a day-long armed raid, during which FBI agents rummaged through all the family’s belongings, taking phone directories and computer hard drives containing business records and other personal information, some of which have still not been returned. Binney, Wiebe, and the other complainants were forced to sue the NSA in November 2011, in order to attempt to recover their property.
The day after the raids, both Binney and Wiebe were summoned to NSA headquarters, where they were informed that the Agency was suspending their security clearances, a decision that cannot be adequately challenged. Binney had held a security clearance since 1965, and Wiebe since 1964.
The FBI also raided Drake’s home, seizing his computers, documents, and books.
After all these storm trooper tactics, the government’s draconian prosecution fell apart. As facts of NSA misdeeds and Justice Department tactics came to light, the government backed off, giving Drake a deal in which he pleaded guilty to a single misdemeanor charge of misusing a government computer. Still, his life was made hell, forcing him and the others out of the patriotic work they had devoted their lives to.
Moths to Flames
In March 2013, Benjamin Pierce Bishop, a retired Army lieutenant colonel and former private defense contractor, pleaded guilty to charges that he shared secret defense information with a female Chinese national whom he was involved with romantically, and that he unlawfully retained other classified documents in his home relating to national defense. Bishop was sentenced to 87 months in prison and three years’ supervised release.
High flying Army General and CIA Director David Petraeus’s downfall didn’t come at the hands of a foreign spy, but his indiscrete dalliance with Paula Broadwell, a married academic and army reserve officer writing his biography, did. Throwing all caution to the wind, the celebrated Iraq War hero and counterterrorism innovator evidently shared volumes of classified information with his amanuensis, whose personal missteps led FBI agents to her door—and then his. He was forced to resign as CIA director.
Petraeus’s fame cushioned his fall, however. In March 2015, removed from the CIA, he was allowed to plead guilty to one count of unauthorized removal and retention of classified material, ordered to pay a $100,000 fine, and given two years’ probation.
An icon in Washington’s national security-industrial complex, Petraeus bounced back quickly. Today he remains a much sought after speaker, author and senior fellow at Yale’s foreign policy school and chairman of the KKR Global Institute consultancy. No doubt Trump’s avid base would give him a soft landing after his guilt plea, too.
Nobody knows what Navy reservist Bryan Nishimura had in mind when, during his tour of Afghanistan from 2007 to 2008, he began downloading government secrets into his personal computer. Whatever, back home in California, Nishimura let slip to naval personnel that he’d mishandled classified information, which triggered an FBI raid on his home, where agents found several unauthorized digital files and printouts. In July 2015, Nishimura pleaded guilty to illegally downloading and storing classified documents. He was sentenced to two years’ probation, ordered to pay a $7,500 fine, give up his security clearance and never to apply for one again. Trump would love a deal like that.
Like Nishimura, Weldon Marshall was a Navy veteran who also served in Afghanistan and who began hoarding classified information. According to prosecutors, Marshall, a government contractor as well, stored government secrets on unauthorized CDs and personal computers that he kept at his Texas home. Why? Who knows? In January 2017 he was arrested, and 15 months later, pleaded guilty to unlawfully retaining classified information. He received a sentence of 41 months in prison and a year’s supervised release. Jack Smith would love an outcome like that with Trump.
Likewise, in August 2016, former NSA contractor Harold Martin was arrested after investigators found “vast troves of classified material” he’d accumulated over two decades and stashed in his home and car. Altogether Martin hoarded “thousands of pages of documents and dozens of computers and other digital storage devices and media containing, conservatively, fifty terabytes of information,” according to a court filing. In 2019 Martin pled guilty to unlawful possession and was sentenced to nine years in prison.
Jack Smith would like that deal, too.
Trump can’t make a persuasive claim that he shared his pilfered classified documents with others out of lofty motives, like former NSA contractor Reality Winner, who was swiftly arrested in June 2017 and pleaded guilty in June 2018 to leaking classified material after she shared with the press a 2016 report about Russia’s interference campaign in that year’s presidential election. Winner was sentenced to 63 months in prison and three years’ supervised release. She’s now out of prison and frequently appears in the media. In 2021, she was the subject of an eponymous documentary.
Hints of Treason
Jerry Chun Shing Lee, a former CIA officer, was arrested in January 2018 for unlawfully retaining national defense information. Those charges were dropped in a deal with prosecutors that saw Lee plead guilty in May 2019 to conspiring with Chinese spies. Lee was sentenced to 19 years in prison.
In May 2018, former CIA contractor Reynaldo Regis pleaded guilty to unlawfully retaining classified materials. Assigned to work with the CIA from 2006 to 2016, Regis “conducted unauthorized searches in classified databases and copied classified information into personal notebooks, which he removed from his workspace at the CIA and stored in his home without authorization,” according to a Justice Department press release. Regis was sentenced to 90 days in prison.
In August 2019, former NSA worker Elizabeth Jo Shirley was arrested and 11 months later pleaded guilty to willful retention of national defense information. Shirley was sentenced to 97 months in prison for the charge. According to the feds, Shirley was driven over the edge in a desperate bid to get sole possession of her six-year-old daughter. She fled to Mexico with the girl in a scheme to contact the Russians, sell them the documents and get them to help her resettle “in a country that would not extradite her to the United States.”
The same week that the National Archives raised concerns about government documents found at Mar-a-Lago, the feds sentenced a former Defense Department worker Asia Janay Lavarello, for “knowingly removing classified information concerning the national defense or foreign relations of the United States and retaining it at an unauthorized location [her home].” In stark comparison with the drawn out probe of Trump, it took the feds only 13 months to resolve the case of Lavarello, an academic who was charged in June 2020, and pleaded guilty in July 2021, to lifting a handful of documents from the U.S. Embassy in Manila, where she was working on a “classified thesis.” Lavarello was sentenced to 90 days in prison and ordered to pay a $5,500 fine.
Likewise, in October 2021 Kendra Kingsbury, a former analyst with the Kansas City Division of the FBI, pleaded guilty to two counts of unlawfully retaining national defense documents in her home. Kingsbury was sentenced to ten months in prison. An FBI investigation into why the documents were removed “revealed more questions and concerns than answers,” prosecutors said, according to NBC News. “Her attorney said she ‘suffered from extensive health issues and family tragedies throughout her tenure with the FBI,’ including the murder of a family member, that led to mental and physical struggles and caused difficulty at work.”
Trump has not yet raised that kind of defense.
Then we come to the case of Jack Teixeira, a member of the U.S. Air National Guard, who was arrested last April after the feds belatedly discovered he had shared hundreds of classified documents, including top secret military secrets about the war in Ukraine, to a 50-person group chat on Discord, a popular social media app that offers anonymous instant messaging. In June, Teixeira pleaded not guilty to six counts of willful retention and transmission of national defense information, which carry a sentence of 60 years and a maximum fine of $1.5 million.
Jack Smith would be very happy with that kind of outcome against Trump, who may well have sold that missing binder of highly classified Russia-related documents to the Russians, his estranged niece Mary says.
“As I mentioned yesterday, just because Republican hypocrisy is the rule, that doesn’t mean we shouldn’t expose it at every opportunity” the clinical psychologist wrote on her Substack blog. “In 2016, Donald Trump repeatedly called for Hillary Clinton to be imprisoned over her alleged mishandling of a private email server during her time as secretary of state.”
Gabriel Levin contributed research to this piece.
In an earlier version of this piece, Mary Trump was described as Trump’s sister. She is, of course, his niece. We regret the error.
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