Kash Patel took a break from polygraphing everyone in his field of vision to find out who keeps telling journalists about his drinking to triumphantly announce that the Justice Department secured an indictment of a former DOJ lawyer for “allegedly emailed the confidential material to her own personal email.” The “confidential material” in question is the still secret portions of Jack Smith’s report detailing criminal activity by Donald Trump that the DOJ concluded would support conviction at trial. Patel apparently didn’t want to get too specific about what this is all about.
Carmen Mercedes Lineberger, 62, served as the managing Assistant U.S. Attorney running the Fort Pierce branch of the Southern District of Florida. The indictment alleges that Lineberger emailed a copy of the report to her personal email account under the title “Fw: Bundt_Cake _Recipe.pdf.” She also allegedly compiled internal DOJ correspondence about the investigation into a chocolate cake recipe.
Taking secret government documents and keeping them in personal custody despite no longer having a legal right to them? It’s almost as if that’s the exact behavior the underlying report is about. Except, of course, the report is about Trump stealing highly classified materials instead of a taxpayer-funded report that is only secret because Judge Aileen Cannon ordered the report suppressed as heresy against Donald Trump. Technically, her ruling was that releasing the report would constitute a “manifest injustice” to Trump since Cannon ruled that Jack Smith was illegally appointed based on… well, nothing coherent actually.[1]
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And now Trump’s DOJ is bringing a federal criminal case to enforce Cannon’s coverup. Makes you wonder just how bad this report must be!
The four-count indictment charging her with theft of government property, concealment of a public record, and altering a record in a federal investigation. The indictment does not allege she sent Volume II to anyone outside DOJ — no journalist, no co-conspirator, no foreign power. So it’s an entire federal case is built on a lawyer emailing herself a PDF.
The marquee theft count runs under 18 U.S.C. § 641, the “theft of government property” statute, here charged on the theory that she stole government information. Journalist Marcy Wheeler put the question to legal experts directly, asking about the legal problems with invoking § 641. National security lawyer Bradley P. Moss noted that it is literally in the DOJ manual not to bring these cases. Moss noted that the DOJ might try to justify an exception on the grounds that the report might contain classified material — which, if true, would only highlight again that the report alleges that Trump actually stole classified information. If the report has classified material in it, that might make the Bundt cake misadventure more serious… but also sort of proves the point of Smith’s case.
However, the DOJ likely isn’t spending that much time and effort coming up with colorable exceptions. I’m pretty sure the manual doesn’t have a section on creating nearly $2 billion worth of slush fund money to compensate convicted insurrectionists either. The DOJ manual is at best a suggestion box these days.[2]
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The theft counts aren’t nearly as serious as the DOJ hype machine implies. AlterNet cites a retired federal appeals lawyer who pointed out that without an express allegation that the value of the stolen property exceeded $1,000, a § 641 offense is a misdemeanor. The indictment itself CONCEDES this, with the penalty sheet listing the theft counts as “valued less than $1,000.00.” So two of the four counts are misdemeanors.
The most serious charge is the § 1519 obstruction count, which makes it a crime to alter, destroy, mutilate, conceal, or cover up a record in a federal investigation. But the only concealing or covering up in this case is coming from Aileen Cannon and her co-conspirators at the DOJ. Based on the indictment, there’s nothing to suggest Lineberger did anything to the report other than possess it. Is the DOJ arguing that Lineberger tried to cover up… the cover up? In any event, even if the government cleared that hurdle, the statute adds the extra requirement that the government prove the defendant took the action with intent to obstruct the administration of Cannon’s order. But Cannon’s order seems to have held just fine for months and months.
What could possibly be the motive in this case if prosecutors don’t allege that Lineberger took this report with the intent to spill it to the papers or undermine an ongoing proceeding? Well, it’s somewhat fitting that this case dropped this week, when a federal judge just had to order the Trump administration not to illegally destroy documents. Whatever copies of this report remained within the control of the DOJ are most likely gone. If Lineberger actually took this report, she may well have just been hoping to save it from the pyre. And if that’s the motivation, it’s not obstruction.
Throwing possible 20-year sentences at a violation that amounts to a misdemeanor at best doesn’t make a lot of sense until it’s placed in the proper context. This report is, it would seem, incredibly damning. And the Trump administration does not know how many extant copies of it are out there in the wild. The DOJ wants to send the message that they’ll make life miserable — up to and including filing charges they obviously can’t support — if anyone still has a copy.
(Read the indictment on the nextpage…)
[1]: Of note, Trump ally Joe diGenova is now reportedly running a grand jury in Cannon’s district to go after Trump’s enemies with the exact same authority Smith had — surely Cannon will slap him down as illegally appointed if he ever comes before her. [Pause for laughter.]
[2]: By the way, Todd Blanche threw his name into the signature block on this indictment, even though he worked on the Trump defense team during the underlying case. And he’s taking a direct role in prosecuting someone for possessing a summary of the evidence against his client. That seems… of some ethical moment, no?
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.