That would explain why the National Archives got the Department of Justice involved. But it doesn’t necessarily mean that those documents were still classified, even if the Washington Post report proves accurate:

Some of the White House documents that Donald Trump improperly took to his Mar-a-Lago residence were clearly marked as classified, including documents at the “top secret” level, according to two people familiar with the matter.

The existence of clearly marked classified documents in the trove — which has not previously been reported — is likely to intensify the legal pressure that Trump or his staffers could face, and raises new questions about why the materials were taken out of the White House.

While it was unclear how many classified documents were among those received by the National Archives and Records Administration, some bore markings that the information was extremely sensitive and would be limited to a small group of officials with authority to view such highly classified information, the two people familiar with the matter said.

The markings were discovered by the National Archives, which last month arranged for the collection of 15 boxes of documents from the former president’s Mar-a-Lago residence. Archives officials asked the Justice Department to look into the matter, though as of Thursday afternoon FBI agents had yet to review the materials, according to two people familiar with the request.

If you missed Allahpundit’s post last night on Trump’s potential legal exposure prior to this revelation, be sure to read it now. All of that still applies, but is likely now secondary to a much larger legal peril of mishandling classified information. The technicalities of violating the statutes governing presidential papers pale in comparison to the very real potential for prison sentences related just to the illegal retention of classified material, not to mention the lack of secure storage, access allowed to uncleared personnel, and so on.

All of this has a parallel in a major scandal that outraged Republicans when it surfaced nearly seven years ago. Hillary Clinton also illegally retained classified material, some of it at “Top Secret” and above, including “operational” intelligence, in an unsecured server at her home in Chappaqua. Whether on paper or electronically, such retention violates elements of the Espionage Act and other criminal laws.

For instance, there’s 18 USC 793, which makes just the mishandling of such material a felony, let alone its retention:

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

That’s ten years per instance, regardless of classification level. When it comes to actual possession, there’s 18 USC 1924, which applies even more to Trump’s situation:

(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

(b) For purposes of this section, the provision of documents and materials to the Congress shall not constitute an offense under subsection (a).

(c) In this section, the term “classified information of the United States” means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.

In both statutes, intent is not a mitigating factor to the underlying crime. It certainly might matter for purposes of sentencing, but not for finding of fact in the crime itself.

The DoJ might not be interested in pursuing a Records Act prosecution. If still-classified material was found at Mar-a-Lago, that will change the calculus dramatically. It might be difficult for Merrick Garland to explain why the DoJ would pursue such charges against Trump when they dropped the matter with Hillary Clinton, of course, but it will be equally difficult for Republicans who howled over that favoritism to Hillary to defend Trump in this instance. That includes Donald Trump himself, don’t forget, who used to lead “Lock Her Up!” chants at his rallies.

The question will be whether Trump declassified those materials before he left office. Presidential authority on classification is plenary, so Trump may well have ordered their declassification. That authority is not retroactive, however, so Trump would have to show some evidence that he ordered declassification before leaving office. If he can’t, then Trump has much deeper legal problems than previously thought, and few friends at the DoJ to help him achieve a Hillaryesque escape from them.