Ryan Goodman and Andrew Weissmann write:

Even before last Thursday’s indictment in United States v. Donald Trump, public speculation swirled about whether the former president had taken classified documents not just to Mar-a-Lago but also to his residence and golf club in Bedminster, New Jersey. The indictment answered that question with a bang while presenting a new puzzle about why Trump isn’t facing even steeper charges.

According to the Justice Department and a taped recording of the former president, Trump took classified records from Mar-a-Lago to Bedminster, where he showed off the contents of such records to others. The indictment alleges that Trump showed a map to a political ally and also showed a writer and a publisher a secret military plan to attack Iran. These two episodes were arguably the most egregious allegations of criminal wrongdoing mentioned in the indictment; they allege not just the improper retention of our nation’s most highly classified information, but the intentional communication of such information.

But these two allegations raise a question: Why did Special Counsel Jack Smith charge Trump with illegal retention of classified documents but not with dissemination of such materials? And is that decision final, or could dissemination charges still be in the works?

Trump’s Bedminster conduct, as described in the indictment, appears to fit the description of two federal offenses designed to keep America’s national-security secrets safe. One makes it a crime to intentionally communicate national-defense information to people not authorized to receive it, and the other makes it a crime to intentionally disclose classified information to the same. These are more serious crimes than willful retention of such documents, which is done to prevent possible leakage. Deliberate dissemination is the leakage itself. [Continue reading…]