Former Vice President Dick Cheney‘s chief of staff Scooter Libby was pardoned in 2018 by then-President Donald Trump, more than a decade after federal prosecutors brought perjury and obstruction of justice charges against Libby.
Now, some legal experts wonder if the Bush-era case serves as a template for how prosecutors could decide to go after Trump with federal charges, should they choose to, for any classified information crimes or something more benign, such as illegal retention of standard government records.
Following the FBI raid on Trump’s Mar-a-Lago estate last week, a released search warrant revealed that the Department of Justice is looking into possible offenses by the former president, including removing or destroying government records, obstructing justice, and violating the Espionage Act.
Trump claimed in a statement last week that the documents seized were “all declassified,” though no further details were offered. Still, Trump’s office maintained the former president issued “a standing order” that the records brought to his residence were “deemed to be declassified.”
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The public remains in the dark as to what materials were outlined in the search affidavit, prompting some experts to ponder whether the actual documents obtained in the search may amount to a negligent mishandling of records or a serious blow to national security.
National security lawyer Bradley P. Moss told the Washington Examiner that Libby’s case marks an “interesting informative precedent, but it’s nothing that prohibits a prosecution here,” highlighting the key differences between Trump and the former Bush official.
“The Scooter Libby case was about information. There wasn’t anything with markings. This was information they disclosed from what had been a classified document or set of documents. But it was a verbal dissemination,” Moss said, adding, “It’s nothing that anybody could cite to in a court filing.”
While Libby was once Cheney’s right-hand man, he was convicted in March 2007 of lying and obstructing an investigation into the leak of the identity of undercover CIA operative Valerie Plame to journalists. In 2003, special counsel Patrick J. Fitzgerald was tasked by then-Deputy Attorney General James Comey to head up the investigation.
In 2006, Libby claimed his “superiors” authorized him to leak highly sensitive intelligence information to the press, including to a New York Times reporter he allegedly tipped off with the name of the undercover CIA operative, according to federal prosecutors.
“If Mr. Fitzgerald had actually sought prosecution of Scooter Libby for violations of either the Espionage Act or for Section 1924, which is unauthorized removal of classified records, we don’t know how it would have played out. He declined to do so. We don’t know what his internal deliberations were on the front of the classification. That was the choice he made,” Moss said.
FBI agents found 11 sets of classified documents during their search at Trump’s Florida estate last week, some of which contained top secret/sensitive compartmented information, or TS/SCI.
“Here with former President Trump, these are hard copy documents that still have the classification markings on them,” Moss added.
Steven Aftergood, a leading authority on classified information policy, said the “Libby case might have been the first time in memory that the question of unilateral presidential declassifications arose,” according to a Politico interview Monday.
“It was giving one-time permission to a particular individual to disclose information to another particular individual. … It highlights the fact that the president purports to, or does, stand outside of the classification system,” Aftergood added.
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For Moss, the only way the DOJ would not move forward on charges for Trump related to mishandled documents is if the department is persuaded by sufficient evidence that Trump’s intent was to have declassified all the records he possessed at Mar-a-Lago, emphasizing that there needs to be “somewhere it’s written down.”
“But if that’s not in play, I don’t see how they can ignore the mountain of evidence that we’ve already learned about, either through the court filings or through media recording, because what it shows is he took 20-something boxes’ worth of records that were never supposed to be in possession anyways. They were all supposed to be turned over to the National Archives,” Moss said.
