Mr. Trump Goes to Court

By Rafael Hoffman

Former President Donald Trump has a new legal battle to contend with: an indictment from the Department of Justice charging him with a long set of crimes related to classified documents the FBI discovered at his home in Mar-a-Lago.

Such charges have been expected since Attorney General Merrick Garland appointed Jack Smith as Special Counsel to guide the case. The indictment alleges that Mr. Trump illegally took and stored the documents which should have been in the possession of the National Archives. The papers, which according to the DOJ, included highly sensitive information, were also allegedly shown to visitors at the former President’s home, who lacked security clearance.

Since the seizure, Mr. Trump dismissed the case as a political witch hunt, arguing that while in office, the Presidential Records Act gave him wide authority to declassify any documents he deemed appropriate.

The DOJ, however, seems poised to counter that claim with what it says is evidence the former President never exercised that authority on these papers and was aware of their classified status, making him liable for several violations of the Espionage Act, a broad 1917 statue relating to breaches in national security.

The indictment brings legal uncertainties about when a trial will come about and what its result will be. In the meantime, its political effects seem positive for Mr. Trump, who has long rallied support criticizing what he presents as the political weaponization of the DOJ and other government agencies.

To get more insight into the unfolding case, Hamodia spoke with John Malcolm, vice president of the Heritage Foundation’s Institute for Constitutional Government.

Aside from questions of whether it was wise to press charges, what is your opinion of the legal merits of this indictment?

It’s hard to say at this point, since the evidence has not been presented and former President Trump’s defense has not been presented in court. What we do have is the indictment itself, which contains a lot of factual information including photographs of the documents in question and purportedly they have audio of Mr. Trump acknowledging that he knew these documents were classified and that he had not declassified them.

We’ll have to wait and see how Mr. Trump’s lawyers contend with these accusations before really forming an opinion, but on the face of it, we can say that what is in the indictment does not put the former President in the best possible light.

What are likely to be the fundamentals of Mr. Trump’s defense?

The major legal issue the Trump team will likely raise is the interaction between the Presidential Records Act and the Espionage Act. The former gives the President the right to negotiate with the National Archives about retaining some documents. We don’t know if any such negotiations took place, but if documentation of those negotiations exists, we will be sure to see them referenced in legal pleadings.

I thought it was unusual that in the 49-page filing there was no mention of the Presidential Records Act at all. Presumably, Mr. Trump’s attorneys will use it to argue that this is a documents dispute that the DOJ has erroneously turned into a criminal case.

The counts against him are that Mr. Trump unlawfully retained the documents, showed them to unauthorized people, obstructed justice, and made false statements. We can assume his lawyers will argue that the Presidential Records Act gives Mr. Trump the right to retain the documents and will try to use that theory to gut the rest of the case. They will likely argue that, at most, this should be a civil action by the National Archives to argue for the documents’ return.

Mr. Trump has already said that he had a standing order to declassify documents and will argue that these documents were included in that order. That is why Jack Smith included quotes of the former President explicitly saying that he could have declassified the documents in question while he was President but didn’t. Apparently on the same audio, he also acknowledges that he should not have been showing the documents to the people he was with. He included a reference to that audio in the filing to try to undercut Trump’s claims that he had declassified these records.

Another argument that Mr. Smith seems to have anticipated is a claim that Mr. Trump didn’t know that he should not have taken the documents with him. To counter that, he included statements by the former President blaming others who left federal service for holding on to classified records.

How will this case proceed now? Will it go to trial, and if so, how soon? If found guilty, what kind of sentence could the former President face?

The three possibilities are, the charges are dropped by the DOJ, Mr. Trump pleads guilty, or the case proceeds to trial. Since the first two are highly unlikely, this case is headed to trial. In terms of speed, that’s mostly dependent on the former President and his lawyers. The Speedy Trial Act gives him the right to insist on a speedy trial, but if they choose to file a lot of pretrial motions, that clock stops so the timing is up to them.

These are pretty serious charges, so if Mr. Trump is found guilty, the consequences could be serious as well. He’s never been convicted of a crime before and has no criminal record to speak of. These charges carry no mandatory minimum penalty, so a judge would not be obligated to incarcerate him. But, given that this indictment includes 31 alleged violations of the Espionage Act, it would certainly be likely that a judge would decide that a guilty verdict deserves jail time. 

How much daylight do you see between this instance and the documents found in President Biden’s possession?

It’s difficult to compare because we don’t know the nature of the documents that were found in President Biden’s possession. According to the indictment, Mr. Trump showed people a map with a battle plan of an invasion of another country that published reports say was Iran. Apparently, some other documents have information about the defense and nuclear capabilities of the U.S. and our allies. Since he only left office two-and-a-half years ago, we can assume that information is fairly current, making it a more serious security breach.

We don’t know if what was found in President Biden’s possession contains highly sensitive information or if the information was current.

One difference that is worth noting, however, is that when he was President, Donald Trump did have the authority to declassify documents. What is now in dispute is whether he did that or not. Joe Biden, on the other hand, neither as a Senator nor as Vice President ever had that authority.

How does the present case contrast to the DOJ decision not to charge Hillary Clinton for her mishandling of classified information?

Both are serious offenses, largely in the same way. Hillary Clinton transmitted national security related documents to and from her private email server and cellphone. She, as Secretary of State, certainly did not have the authority to declassify any of those materials or to remove them from the secure viewing facility, and when she was working with that material, it was definitely current.

Mrs. Clinton probably should have been prosecuted. It also stands out that these two situations were handled very differently. The FBI did not execute a search warrant of the Clintons’ home in Chappaqua, New York; they did not seize the server. Mrs. Clinton’s lawyers went through the computers and phones and submitted what they chose to. When she got served a subpoena by Congress, Mrs. Clinton said that the material in her possession was not germane to their investigation and she whitewashed the hard drive on her server and destroyed her cellphones. It’s horrible that she was able to get away with that; the server and the cellphones should have been seized, but that’s what happened. Hillary Clinton was allowed to destroy evidence and was never prosecuted for the way she handled this information or for obstruction of justice.

Jim Comey, who was then FBI Director, said that what she did was very sloppy, but that no reasonable prosecutor would bring the case. I would question that because the Espionage Act talks about gross negligence in the handling of national security information, and I know some good prosecutors who would have found it very reasonable to press charges along those lines. Now, that the DOJ decided to charge Mr. Trump a few years after not charging Mrs. Clinton, it definitely creates a perception that the Justice Department is not operating in a politically neutral manner. 

That said, one difference between the cases is that Jim Comey concluded that Mrs. Clinton hadn’t intentionally withheld any classified information. We don’t know if that’s factually correct, but the indictment here certainly alleges that Mr. Trump did intentionally hold back these documents.

Given the high political stakes and perception, do you think it was wise for the DOJ to move ahead with these charges?

It is a very radical step to prosecute a former President, particularly given that he is a leading contender for a rematch with the current sitting President. These allegations look bad for the former President, but on the other hand, there is no record that he showed classified information to an enemy or that he had any harmful intent. That being the case, I think a lot of reasonable people could conclude that prosecution risks more harm to our system than it is worth. Once you cross this line of an administration of one party prosecuting a political opponent, who knows where it goes next? Is the next Republican President going to go after the Biden family for some of their suspicious dealings? 

Politically, we are a very divided country and there are many people who already think the DOJ has been weaponized. This will definitely feed and inflame that perception. But, they decided to bring these charges, so I guess the DOJ was not especially concerned with these considerations.

How much space is there between a special counsel and the Attorney General?

It creates some space, but not a lot. We used to have the potential to appoint independent counsels who could bring charges themselves, without the approval of the Attorney General. But that statute was allowed to lapse and was not renewed, so all we have now is the special counsel’s office which works under the supervision of the Attorney General. Merrick Garland had to sign off on these charges. He could have told Jack Smith to write up his findings in a report and to not bring charges, so this decision lay with the Attorney General, not the Special Counsel.

Do you think the Special Counsel presented the case in a way that minimizes room for accusations of a political prosecution?

Jack Smith tried to take care of perceptions of political motivation by laying out the facts that support his charges as clearly as possible as a way of saying, “look what this guy did, I couldn’t just ignore this.”

That said, once this gets to court, his argument better be very convincing. If not, there will be a lot of people saying that these charges would have never been brought if they involved anybody other than Donald Trump.

How does this affect the right’s view of the DOJ and the “deep state” in general? Do you think those sentiments will find their way more prominently into the discussion among Republican presidential candidates? 

We’re hearing just about all the Republican candidates expressing concern that the DOJ and the FBI are being weaponized. I assume each one of them is sitting with their advisors now figuring out how to play this, and I doubt their responses will be uniform.

How do these charges affect the GOP primary race?

These charges would be the death knell for anybody else, but Donald Trump consistently defies gravity. He’s raising a lot of money off of this. After the New York charges, his poll numbers rose. But, I would note that those charges don’t strike me as nearly as serious as these.

One thing these charges seem sure to do in the political realm, is to keep the GOP primary conversation about Donald Trump rather than about the problems of the Biden administration.