US v. Trump: Multiplicity and Mistake of Law

A team of lawyers at Just Security posted a remarkable Model Prosecution Memo addressing the possible charges against Donald Trump; it predicted with great accuracy the charges which wound up in the indictment and analyzes the facts and law expertly and in detail. A couple of issues which arising from the indictment itself do not seem to have been addressed in the memo or elsewhere: Multiplicity and mistake of law.

Multiplicity

The indictment charges Trump with 37 counts of various offenses. The theoretical sentence would be 400 years if Trump received a maximum, consecutive term on each count, a highly improbable outcome, especially given the Guidelines. Counts 1-31—310 years of the 400-- charge unlawful retention of national defense information in violation of 18 U.S.C. § 793(e).  Based on the indictment and other information, all of the documents were allegedly in groups of boxes kept at the same places at the same time. The unlawful retention of all documents is alleged to have begun on January 20, 2021. 

There is an argument that Counts 1-31 should be one or two counts instead of 31. The issue is the “unit of prosecution,” which addresses whether and when conduct can result in more than one charge of violating a criminal statute. The sin is “multiplicity,” charging a single crime in more than one count. Courts treat this as a matter of legislative intent, which is often unclear. A leading case is Bell v. United States where the Supreme Court evaluated whether a Mann Act violation—transporting women across state lines for immoral purposes—was punishable based on the number of women transported or the number of trips. Relying on the rule of lenity, the Court held that it punished the act of transportation no matter how many women were involved. 349 U.S. 81, 82 (1955). The issue frequently arises in firearms prosecutions; many courts hold that a prohibited possessor (such as a person with a felony conviction or an unlawful user of drugs) can be convicted only of one count, no matter how many firearms they possess, or how many reasons they are banned from possessing weapons. United States v. Cureton, 739 F.3d 1032, 1041 (7th Cir. 2014).

On the other hand, for some offenses, every day the conduct continues authorizes a new count. United States v. Cooper, 966 F.2d 936, 944 (5th Cir. 1992) (“We conclude that the maintenance of a crack house constitutes a separate offense each day it is continued.”). Unlike the Mann Act, with respect to unlawfully bringing in noncitizens to the United States, the statute makes clear that each noncitizen transported gives rise to a separate count.

In the context of § 793(e), the question is whether the “unit of prosecution” is the number of documents retained, or the number of acts of retention. The only case I could find involved DOJ lawyer Jay Bratt, who is also prosecuting in the Trump case. The district court faced the defense argument that “retention of information contained in separate documents on the same date in relatively the same location cannot give rise to multiple violations of Section 793(e).” United States v. Hitselberger, 991 F. Supp. 2d 86, 89 (D.D.C. 2013). The Court rejected the argument on the facts, because the DOJ contended that the defendant “is charged with retaining classified documents in violation of 18 U.S.C. § 793(e), which contained distinct information, were acquired at separate times, and were stored in separate locations.” However, Count 1 of the indictment joined in a single count the defendant’s retention of two separate documents which were found in his backpack at the same time in the same place. I expect Trump will argue that, just as in Count 1 of Hitselberger, all retained documents held at the same time and the same place amount to, at most, one count. On that theory, the 31 counts should be merged into one.

The documents at issue in Counts 22-31 were returned on June 3, 2022, perhaps the documents retained after that would constitute a separate count under this approach. Counts 1-21 involve the documents seized in the August 8, 2022 search. But Trump would have an argument, at least, that as to Counts 1-21, “the offence was complete and further retention was not a repetition of it.” United States v. Lewis, 161 F.2d 683, 684 (2d Cir. 1947).

Mistake of Law

I have a friendly amendment to the Just Security memo in the area of mistake of law, a defense not specifically addressed. The memo recognizes that the mens rea for the offense is willful: “Willfulness requires the Government to prove that the defendant’s actions were intentional and voluntary, and that she acted with the specific intent to do something which she knew the law prohibited.” Just Security Memo at 31.

This is a very strong form of mens rea: “the standard for the statutory willfulness requirement is the 'voluntary, intentional violation of a known legal duty.'” Cheek v. United States, 498 U.S. 192, 201 (1991). Although the Supreme Court seems not to have ruled on this question, a number of lower courts apply the Cheek standard to § 793(e). United States v. Morison, 844 F.2d 1057, 1071 (4th Cir. 1988); United States v. McGuinness, 35 M.J. 149, 153 (C.M.A. 1992).

If Cheek applies, then defendants will be allowed to assert a personal mistake of law defense (which the United States will have to disprove beyond a reasonable doubt).  As then-Judge Kavanaugh explained:

To be sure, “ignorance of law is no defense” is a hoary maxim. But it does not automatically apply to today's phalanx of federal regulatory crimes. See Wayne R. LaFave, Criminal Law § 5.6, at 298-311 (5th ed. 2010). For some regulatory offenses-particularly statutes like § 1001 that proscribe only “willful” conduct-the Supreme Court has recognized an ignorance-of-law or mistake-of-law defense, or has required affirmative proof of the defendant's knowledge that his or her conduct was unlawful.

United States v. Moore, 612 F.3d 698, 703 (D.C. Cir. 2010).  The question in that case would not be whether Trump was entitled to retain the documents.  He has claimed that he is so entitled; the Just Security memo explains why he is wrong, if Trump were to prevail on that claim, the case would simply go away as to that issue. But even assuming that Trump had no legal right to retain the documents, he could still be acquitted if the government cannot prove that Trump is lying when he says he thought he was doing what the law allows. There is, by the way, no reasonableness requirement: “the Supreme Court rejected the idea a defendant's good-faith belief must be objectively reasonable in order to constitute an affirmative defense to a willful violation of a legal duty.” United States v. Knight, 181 F. App'x 862, 864 (11th Cir. 2006).

Cheek did distinguish between different types of mistakes. It was one thing to erroneously believe that a law did not apply; it was another to understand that it applied but to erroneously believe that the law was unconstitutional. The Court held that in the latter case a defendant should seek redress in court, and otherwise took the risk that their belief was mistaken.

Only Justice Scalia rejected this view, arguing in a concurrence that a defendant’s belief that a law was unconstitutional negated willfulness:

As the Court acknowledges, our opinions from the 1930's to the 1970's have interpreted the word “willfully” in the criminal tax statutes as requiring the “bad purpose” or “evil motive” of “intentional[ly] violat[ing] a known legal duty.” See, e.g., United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Murdock, 290 U.S. 389, 394-395 (1933). It seems to me that today's opinion squarely reverses that long-established statutory construction when it says that a good-faith erroneous belief in the unconstitutionality of a tax law is no defense. It is quite impossible to say that a statute which one believes unconstitutional represents a “known legal duty.”

498 U.S. at 207–08 (Scalia J., concurring in the judgment). No other justice joined this opinion, but in the 30 years since Cheek, there has been a lot of turnover on the bench, so it is not out of the question that Trump’s attorneys will run this up the flagpole for appeal. Of course, making any argument based on Cheek opens the door to all kinds of evidence probative of intent and bad faith. United States v. Lankford, 955 F.2d 1545, 1551 (11th Cir. 1992).