Mar-a-Lago docs so sensitive that prosecutors may choose to leave some out of criminal case to avoid exposure

No matter how strong the evidence is against Donald Trump, prosecuting a former president poses significant challenges.

Attorney general Merrick Garland has pledged to "follow the facts ... wherever they lead," but he must also factor in the political fallout and national security risks that could follow the highest-profile prosecution in U.S. history, according to law enforcement officials and intelligence agency lawyers who spoke to Politico.

“They’re going to have to be satisfied that they’re going to have a very, very strong case to present to a grand jury and ultimately to a jury,” said former CIA general counsel Jeffrey Smith. “If the prosecutors can get over all those hurdles, given that it’s a former president, it will be a tough call for the attorney general.”

The Department of Justice filed a 40-page motion late Tuesday laying out new evidence and a detailed timeline that shows Trump took boxes of classified materials to Mar-a-Lago, refused to give some back and misled the Department of Justice about the location of those materials, and prosecutors have developed a series of "plus factors" that make an indictment appear increasingly likely.

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“It seems to me it’s moving in the direction of warranting criminal charges,” said David Laufman, former chief of the counterespionage section at DOJ’s National Security Division. “I think [Trump] has significant criminal exposure. Whether they ultimately decide to exercise prosecutorial discretion in favor of prosecuting him is another question.”

The materials Trump took home with him are so sensitive that bringing criminal charges could raise the risk of those secret materials leaking out before or during a trial, so prosecutors would likely try to minimize that risk by charging only over a limited set of documents that pose the least risk.

“The government has to choose what documents will be used as evidence and that selection process is a thing unto itself,” Laufman said. “They’ll try, ultimately if they make this decision, to choose documents as intrinsically palpably sensitive to any juror who’s confronted with them without presenting undue harm.”