One will often hear, “Ignorance of the law is no defense,” and that is certainly true. However, in a potential charge against Trump for possible espionage, obstruction of justice, or illegally held files, the prosecutors will have to prove intent and Trump’s state of mind, which can be difficult with this type of case. Additionally, it doesn’t take a lawyer to appreciate that if one contemplates charging a former president, it must be based upon overwhelming evidence that is almost irrefutable. To that end, it sounds like DOJ has more critical and irrefutable evidence. The NYT reports that former White House attorney and semi-hero in the post-election period, Eric Herschmann, warned Trump about keeping the files:
A onetime White House lawyer under President Donald J. Trump warned him late last year that Mr. Trump could face legal liability if he did not return government materials he had taken with him when he left office, three people familiar with the matter said.
The lawyer, Eric Herschmann, sought to impress upon Mr. Trump the seriousness of the issue and the potential for investigations and legal exposure if he did not return the documents, particularly any classified material, the people said.
“Sought to impress upon Mr. Trump…” It sounds like Herschmann, despite all he had already been through with Trump, still “sought” to save Trump from himself and give the files back. It is telling that Trump refused, and it is consistent with the evidence which we already know to exist.
One of the strongest elements of the Justice Department’s investigation and the search warrant is the evidence demonstrating the many times Trump faced a choice between doing what he knew to be right, giving the files back, versus what he knew to be wrong, keeping them for his own purposes. Despite multiple points that most people would consider their “last chance,” Trump knowingly broke the law for his own purposes. It is evidence of his state of mind and intent.
If Herschmann's testimony is as good as this article suggests, DOJ will be able to establish a key element of the charges they set forth in the search warrant affidavit – his state of mind. That's usually the most difficult element in cases like this. https://t.co/4qNXd04p7r
— Joyce Alene (@JoyceWhiteVance) September 20, 2022
We have yet to see or hear any evidence as to Trump’s possible plans for the documents. Trump’s motivation could go from the dangerously mundane “need to feel important and keep trappings of office,” all the way to a Rosenberg-type scenario where Trump wanted to take this critical and intensely secret information and sell it to the highest bidder. We don’t know. But the more clear evidence regarding these “junctions,” or turning points, where Trump knew he could face extremely serious consequences and yet chose to risk it all, the stronger the case against Trump. This evidence also increases the suspicion that Trump had a specific, serious, and recklessly dangerous reason for keeping the information with him.
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