Donald Trump has been so many “first” and “unprecedented” things since he entered the political and legal scene that it’s fatiguing to keep up with them. He was the first President to be impeached twice. Just two months ago, in April, he became the first former President to be indicted for state crimes. And now he is the first former President to be indicted for federal crimes. Trump has repeatedly denied any wrongdoing, but the forty-nine-page federal indictment, unveiled on Friday, involving post-Presidency conduct, tells a story that is unmistakably stamped with the Trump trademark of danger and horrifying comedy.
According to the indictment, as he left the White House in January, 2021, Trump and his staff quickly stuffed many papers into scores of boxes. The files included hundreds of classified documents, on “defense and weapons capabilities,” “nuclear programs,” “potential vulnerabilities of the United States . . . to military attack,” and “plans for possible retaliation in response to a foreign attack.” Then the boxes travelled to Trump’s Mar-a-Lago Club, where they were, at various times, kept in “a ballroom, a bathroom and shower, an office space, his bedroom, and a storage room” accessible from a “pool patio” and “near the liquor supply closet, linen room, lock shop, and various other rooms.” One of his employees’ text messages referred to “the beautiful mind paper boxes”—in an apparent comparison to the film “A Beautiful Mind,” about John Nash, Jr., in which the mathematician’s schizophrenia led to paranoid delusion that he was on a classified Defense Department assignment to discern hidden patterns, about the Soviets, from newspapers and magazines.
In July, 2021, according to an audio-recorded interview at Trump’s New Jersey golf course, he displayed, to a writer and publisher working on Mark Meadows’s book (eventually published as “The Chief’s Chief”), a document that Trump described as the military’s “plan of attack” on Iran, which, he said, “as President I could have declassified, but now I can’t.” Several months later, Trump allegedly also showed a representative of his political-action committee “a classified map related to a military operation” that he said he should not be showing him. Many months after the National Archives demanded that he return the records, Trump produced fifteen boxes that included nearly two hundred classified documents, but held back many more.
The Justice Department then opened a criminal investigation and, on May 11, 2022, obtained a federal grand-jury subpoena demanding that Trump return all classified documents. In response, according to notes recorded by his attorney M. Evan Corcoran, Trump asked, “Wouldn’t it be better if we just told them we don’t have anything here?,” and, “Well look isn’t it better if there are no documents?” Before permitting Corcoran to search the storage room for classified documents to return to the government, Trump had his personal aide, or “body man,” Waltine Nauta, move dozens of boxes out of it—as seen in Mar-a-Lago video-surveillance footage. Corcoran, none the wiser, later searched the room and found just thirty-eight classified documents, and then got another attorney, Christina Bobb, to certify to the Justice Department and the F.B.I. that those were all of them. According to Corcoran’s notes, Trump “made a funny motion as though . . . if there’s anything really bad in there, like, you know, pluck it out.” Finally, in August, 2022, an F.B.I. search of Mar-a-Lago recovered more than a hundred additional classified documents.
The thirty-seven felony counts arising from these alleged facts fall into several buckets. The first concerns Trump, alone, and covers the period from his leaving office, in January, 2021, to the summer of 2022. The thirty-one counts in this group involve the allegations that he retained national-defense information about top-secret intelligence on foreign countries, foreign military and nuclear capabilities, “foreign country support of terrorist” attacks, and U.S. vulnerabilities and military planning—in violation of a part of the Espionage Act that prohibits a person from “willfully” retaining any document “relating to the national defense” of which he has “unauthorized possession.”
A second group of counts, focussed on the period after Trump received the grand-jury subpoena, involves obstruction of justice, and has been brought against both Trump and his aide and now co-defendant, Nauta. These counts involve allegations that the two men actively concealed documents and misled, intending to make documents unavailable for an official proceeding or a federal investigation. This set also includes an alleged conspiracy between Trump and Nauta to obstruct justice; for example, by Trump’s suggesting that Corcoran tell the government that there were no documents; by moving boxes to hide them from Corcoran; and by giving the F.B.I. and the grand jury only some of the classified documents while representing that all of them had been produced.
The remaining counts involve lying to the government. These pertain to allegations that Trump and Nauta engaged in a scheme to conceal Trump’s continued possession of classified documents after the grand-jury subpoena, and that Trump caused Bobb to falsely certify that “a diligent search” was conducted and that all classified documents were turned over. Nauta also faces a charge of falsely telling the F.B.I., at a voluntary interview, that he did not know how the boxes were kept and stored. (His lawyer, Stanley Woodward, has declined to comment to the press.)
Given the evidence that the government apparently has—video and audio recordings, text messages, testimony from employees, notes from Trump’s own lawyer, and vivid photographs of the boxes in situ that are included in the indictment—even a skeptical reader would think that the special prosecutor, Jack Smith, had little choice but to seek the indictment. The elements of the crimes are so straightforward to establish, considering the facts alleged, that one wonders whether Trump wanted to be prosecuted. Intent, typically the most difficult element to prove, is easy here: Trump told people—on tape—that he was showing them a classified document relating to military secrets that he had not declassified while he was President. That admission destroys his potential defense that he had the documents unknowingly, or believed that they were not classified. Furthermore, in this case, the strong evidence of obstruction of justice, such as videos showing boxes being moved from the storage room before his lawyer was scheduled to search it, responsive to the subpoena, has the benefit of also establishing Trump’s intent to retain the documents even after clearly knowing that he was required to return them.
The problem is not with the indictment itself: there is no real worry that it will be dismissed as legally insufficient, or that the charges are false, or that the crimes aren’t serious enough. The indictment and the evidence appear very solid, and rely on no novel theories. But the fact that this is a good indictment—and, even more, that Smith had no choice but to bring the prosecution once he found the facts that he did—does not insure that the consequences for the country will be positive.
Trump is the current front-runner for the Republican nomination for President, and, even if he were to be tried, convicted, and sentenced before November, 2024, it seems unlikely that he would stop running. There is no law to disqualify a candidate from running because he is in prison. Eugene V. Debs, the Socialist Party candidate, ran for President from prison in 1920, after being convicted for antiwar speech under the Espionage Act—a law that has had an unfortunate history of being weaponized to persecute dissenters. The federal prosecutor in the Debs case said that “no man, even though four times the candidate of his party for the highest office in the land, can violate the basic law of this land.” From prison, Debs made a campaign statement: “I thank the capitalist masters for putting me here. They know where I belong under their criminal and corrupting system. It is the only compliment they could pay me.” He got almost a million votes, and later received a Presidential pardon from the man who won the election, Warren Harding.
There is also no law preventing someone who is imprisoned from actually becoming President, though that has never happened before. If it were to happen now, we would face the question of whether Trump would have to be in prison while serving as President—or be spared prison time as a consequence of having won the election. The counts in the indictment carry maximum sentences of five, ten, or twenty years each, for a total maximum of several hundred years, if he were to be convicted on every count (about a hundred years if sentences were served concurrently). But, as there are no required minimum prison sentences here and the punishments could, in theory, be large fines, a court may be unwilling to impose a sentence of confinement that would force a democratically elected President to do the job from a prison cell or even under supervised release while in the White House. Of course, in any event, as President, Trump would claim to be able to pardon himself for crimes of which he has been, or could be, convicted. I cannot imagine any Supreme Court, conservative or liberal, agreeing that the Constitution would allow that.
Considering the slowness of the criminal process and the time that Trump’s lawyers will use up litigating myriad issues before we even get to a trial, we will likely be spared an election involving a convicted felon campaigning for President while incarcerated. In fact, there is precious little chance that the case will be resolved before next November. The indictment gives Trump and his supporters the strongest of reasons to persevere. If he wins the Presidency, he will almost certainly order the Justice Department to abandon the case. An Office of Legal Counsel opinion, from 2000, indicating what the Justice Department would likely do, took the position that a President cannot be prosecuted while he is in office.
The idea of Trump escaping criminal liability in this case may be unbearable for those whose concern is the rule of law and a demonstration that Presidents are not kings. But even a scenario in which Trump is convicted and Biden wins reëlection has drawbacks. Trump has recently led Biden in some polls, and not only Trump’s most ardent supporters would believe that he had lost because the Justice Department had prosecuted him. The prospect of a second Biden term while Trump sits in prison will surely be intensely motivating for Republicans. It also has a high chance of being disastrous for the country’s sense of its democratic integrity. And will we go through all this to prove a point about no man being above the law, only to have it become politically unfeasible for Biden not to pardon Trump in 2025, as Harding pardoned Debs in 1921?
Whether in power or out of it, threatening to lock up political rivals or getting indicted, Trump has not lost his uncanny ability to push our system of government and our country’s identity as a rule-of-law democracy to the breaking point. The political prognosis of the next several years just got even more grim, but there was also no way to avoid it. ♦
