Since Donald Trump came down the escalator at Trump Tower nearly eight years ago, we’ve seen just about everything: two impeachments, an indictment at the state level, an investigation into his role in trying to overturn the 2020 election. Now he has made history again, becoming the first former President—and major Presidential candidate—to be indicted on federal charges. Next Tuesday, Trump will travel to a federal courthouse in Miami, to be arraigned on criminal charges arising from his alleged mishandling of more than a hundred classified documents, which were found at his Mar-a-Lago home and resort in Palm Beach.
Although New York State prosecutors earlier this year brought criminal counts against Trump in a case pertaining to the hush-money payments he allegedly made to the adult-film actress Stormy Daniels in 2016, the news that an independent special counsel, acting under the auspices of the Justice Department, is hitting the former President with charges relating to national security raises the legal and political stakes to a vertiginous level. That Trump is currently leading the polls for the 2024 G.O.P. primary adds another unprecedented twist.
The news of the federal indictment didn’t come as a surprise to legal observers who have been following the case, but the timing was sooner than some had expected. Official correspondence released earlier this year revealed that Trump had transported hundreds of classified documents to Mar-a-Lago in the final days of his Presidency and refused to return some of them despite repeated requests from the National Archives. There have been reports that Trump’s lawyers fully expected him to be indicted, and earlier this week some of them visited the Justice Department to meet with the special counsel, Jack Smith—an indication that the investigation into the documents case was reaching a climax. (Smith is also leading the investigation into efforts made by Trump and his associates to overturn the 2020 Presidential election.)
Though the indictment is not yet public—even Trump’s lawyers had seen only a summary, according to Jim Trusty, who was until recently a member of the former President’s legal team—it has been widely reported that a grand jury has charged Trump with seven criminal counts. Trusty told CNN that the charges include the unauthorized retention of national-security documents in violation of the Espionage Act, obstruction of justice, conspiracy, and making false statements.
Trump himself broke the news of the indictment, on Thursday night, in a series of messages on his social-media site, Truth Social. “I AM AN INNOCENT MAN,” he wrote, and posted a video in which he said, “It’s a hoax. The whole thing is a hoax, just like Russia, Russia, Russia. . . . It’s called election interference. They’re trying to destroy a reputation so they can win an election.”
The release of the video, and the accompanying text posts, was clearly an attempt to get ahead of the story, define the narrative, and issue talking points to his supporters and elected Republicans. Judging by the immediate reaction, his message was received loud and clear. On Thursday night, House Speaker Kevin McCarthy, who just last week completed a bipartisan deal with President Biden to raise the debt ceiling, wrote on Twitter: “Joe Biden kept classified documents for decades. I, and every American who believes in the rule of law, stand with President Trump against this grave injustice.” Even some of the Republicans who are running against Trump for President are criticizing the indictment via Twitter. Ron DeSantis, the governor of Florida, said: “The weaponization of federal law enforcement represents a mortal threat to a free society.” Chris Christie, the former New Jersey governor, struck a different note, however. “As I have said before, no one is above the law, no matter how much they wish they were. We will have more to say when the facts are revealed,” Christie said.
The White House has not commented on the indictment beyond noting that it didn’t receive any advance notice of it and learned about it only from media reporting. Congressional Democrats have been more vocal. Representative Jamie Raskin, of Maryland, who was the lead House manager in the second impeachment of Trump, which arose from his role in instigating the January 6th riot on Capitol Hill, said the indictment “tells us that former President Donald Trump put our national security in grave danger as he pursued yet another lawless personal agenda by pilfering and hoarding government documents.” California Representative Adam Schiff, who led the prosecution of the former President during his first impeachment, at the start of 2020, said, on Twitter: “Trump’s apparent indictment on multiple charges arising from his retention of classified materials is another affirmation of the rule of law. For four years, he acted like he was above the law. But he should be treated like any other lawbreaker. And today, he has been.”
The United States has draconian laws relating to classified information, and in the past the Justice Department has brought charges for mishandling against many government officials, junior and senior. In 2005, Sandy Berger, who served as Bill Clinton’s national-security adviser from 1997 to 2001, pleaded guilty to a misdemeanor charge of removing and retaining a handful of classified documents from the National Archives without authorization in 2003. (He reportedly stuffed them down his pants and socks.) In May, 2021, the Justice Department charged an F.B.I. intelligence analyst with removing and retaining hundreds of classified documents, using the same Espionage Act statute it appears to be using against Trump. The analyst, who has pleaded guilty, is facing a sentence of up to ten years. (On Thursday night, the Times’ Adam Goldman pointed out that one of the prosecutors who handled that case is now advising Jack Smith.)
Of course, neither Berger nor the F.B.I. analyst was a former President, with a fanatical following, running for office again. (The closest thing we have to a precedent for this might be Eugene Debs, the Socialist labor leader who was convicted under the Espionage Act for supporting antiwar protesters, and went on to launch a Presidential campaign, in 1920, from his prison cell.) We are undoubtedly entering the unknown. But, in the immortal phrase of Donald Rumsfeld, it is perhaps a known unknown. Beyond Tuesday’s court appearance, we can’t know what the ultimate outcome of the indictment will be, or whether the case will go to trial before the 2024 election. And yet we do know how things will likely play out: Trump screaming that the Democrats and the “deep state” are out to nail him, his base rallying behind him, and many elected Republicans publicly backing him regardless of the evidence against him. That process is already well under way. ♦
