Trump indictment: How should the classified documents case be prosecuted?

June 16, 2023 in International

I did everything right, and they indicted me,” former President Donald Trump said at a Tuesday night rally at his Bedminster, N.J., golf club. His speech there capped a day like no other in American history.

Hours before, Trump walked into the Wilkie D. Ferguson Jr. U.S. Courthouse in Miami, where he became the first former president to be arrested on federal charges.

The charges are related to his handling of hundreds of classified documents that he took from the White House when his term concluded in 2021. A trial could begin as Trump fights to secure a third consecutive Republican nomination for the presidency, making for an extraordinary clash of political and legal forces — and the kind of drama he usually loves.

Except this reality show could end in prison. His supporters say such an outcome would be grossly unjustified. But to the former president’s opponents, prison is exactly where he belongs.

In its indictment, the Department of Justice said Trump’s carelessness “could put at risk the national security of the United States.”

Trump and his supporters say the charges are overblown and politically motivated, intended to stop him from attaining the presidency once again.

“They are not coming after me,” he told his supporters on Tuesday night. “They are coming after you. I just happen to be standing in their way, and I will never be moving.”

What’s next

Special counsel Jack Smith, who drafted the Trump indictment, has promised a “speedy trial,” but it is not clear he has the power to make good on that promise.

“In every case that I had involving classified information, we never had a speedy trial,” a former federal prosecutor with expertise in national security told Reuters. “This case will be designated complex because it involves classified information.”

Many predict that the pretrial phase will last well into 2024, allowing Trump plenty of time to smear every aspect of the prosecution. He did just that on Tuesday, telling supporters who had gathered at Bedminster that special counsel Smith is a “thug.”

Republicans who back Trump say he did nothing wrong

“As somebody who has been to Mar-a-Lago, you can’t walk through Mar-a-Lago of your own accord, because Secret Service is all over the place. So if the documents are in a place, they are in a room, depending on the time of year, you can’t even get into said room,” said Rep. Byron Donalds, R-Fla., who has endorsed Trump’s latest White House bid.

House Speaker Kevin McCarthy, R-Calif, made a similar argument, addressing a photograph of document-filled boxes lining bathroom walls.

“Bathroom doors lock,” he said.

Trump does not have broad declassification powers, expert says

Trump’s supporters (and attorneys) could argue that, as president, he could declassify documents by simply declaring them unclassified. But according to Obama administration ethics attorney Norm Eisen, who helped draft declassification laws, that argument won’t fly in court.

In a recent article for CNN, Eisen argues that an executive order he drafted in 2009 to clarify the rules surrounding classification makes it clear that Trump had no such authority. The executive order “sets up a declassification process that applies to everyone — even the president — and it says nothing about automatic presidential declassification,” Eisen writes.

Trump attorneys could argue that he was targeted by political enemies

Trump’s attorneys could also argue that he is the victim of selective prosecution. Plenty of other government officials — including President Biden and Trump’s own vice president, Mike Pence — have acknowledged possessing classified documents they should have turned over to the National Archives.

Many experts think this argument is weak, too, even if it may help Trump in the GOP primary by casting him as the victim of a “deep state” intent on keeping him out of the White House.

“The politics are such that they will likely make the motion,” a former federal prosecutor who now teaches at Duke University told The New York Times.

He added that such an effort would be a “total loser.”

‘The cover-up is worse than the crime’

The documents aside, Trump is being charged with obstruction of justice for lying in an effort to frustrate federal authorities from reclaiming the materials in question.

Those efforts are detailed extensively in Smith’s indictment — and could be the best argument against Trump in the courtroom.

“This is sort of the classic type of crime where people say the cover-up is worse than the crime,” a Georgetown law professor told ABC News. “The idea that you would cover up, that is the type of thing that prosecutors always look for.”

In other words, Trump could be in deep, deep trouble.

“Yes, I do think he will go to jail on it,” former Trump attorney Ty Cobb recently predicted.