The Indictment Against Trump is Very Strong
Why Couldn't He Just Have Given the Documents Back?!
On August 7, 1974, a delegation of Republicans led by Sen. Barry Goldwater of Arizona went to the White House to warn President Richard Nixon that he faced the certainty of impeachment in the House, conviction by the Senate, and removal from office for his role in the Watergate scandal. The embattled Nixon resigned the next day.
Goldwater and those who joined him for the meeting with Nixon may not have had the United States’ best interests and was only given a readout of the tumultuous political landscape that Nixon faced in Congress, but it’s clear that the news wasn’t sugar-coated. It’s the sort of sobering analysis that’s missing inside today the Republican Party, particularly in the conservative movement.
On Thursday, former President Donald Trump was indicted by a federal grand jury in the Southern District of Florida on 31 counts of willful retention of national defense information (18 U.S.C. §793(e)), one count of conspiracy to obstruct justice (18 U.S.C. §1512(k)), one count of withholding a document or record (18 U.S.C. §1512(b)(2)(A)), one count of corruptly concealing a document or record (18 U.S.C. §1512(c)(1)), one count of concealing a document in a federal investigation (18 U.S.C. §1519), one count of scheming to conceal (18 U.S.C. §1001(a)(1)), one count of making false statements and representations (18 U.S.C. §1001(a)(2)).
Trump is innocent until proven guilty. Be that as it may, the indictment is very strong, and the evidence is compelling. However, prosecuting a former president is indeed unprecedented. That’s going against the prosecution, which is why I’m skeptical that Trump will be found guilty of anything. Of course, Trump’s actions were unprecedented. Jurors will have to contend with the gravity of the situation, and I won’t envy them.
The question has to be asked, why couldn’t Trump just have given back the classified documents?! It’s highly unlikely that this case would’ve been filed had he simply complied with the grand jury subpoena issued in May 2022 ordering him to return all of the classified documents. Instead, Trump allegedly went to great lengths to conceal the documents, which included “top secret” documents, a “secret” document about the nuclear capabilities of the United States, and “top secret” and “secret” documents about the military capabilities of foreign countries.
We know that on two occasions Trump showed documents with some level of classification to people, none of whom had security clearances. On one of those occasions, Trump appears to surrender one of his key defenses—that he supposedly declassified the documents that he took with him. According to the indictment, Trump says, “[A]s president I could have declassified it…Now I can’t, you know, but this is still a secret.”
I know the reflexive counter from conservatives is about Hillary Clinton, who, as secretary of state, used a private server to send and receive email. Clinton was investigated for potentially breaking 18 U.S.C. §793(d), 18 U.S.C. §793(e), 18 U.S.C. §793(f), 18 U.S.C. §1924, and 18 U.S.C. §2071. (It’s worth noting that Sec. 202 of the FISA Amendments Reauthorization Act of 2017 increased the penalty under 1924 from one year to five years, making it a felony. Trump hasn’t been charged under this statute.)
As the Department of Justice Inspector General noted in a June 2018 report, prosecutors didn’t charge Clinton and other State Department staff because “[n]one of the emails contained clear classification markings as required under Executive Order 13526 and its predecessor. Only three email chains contained any classification markings of any kind. These email chains had one or two paragraphs that were marked ‘(C)’ for ‘Confidential’ but contained none of the other required markings, such as classification headers.”
The report also noted, “There was no evidence that the senders or former Secretary Clinton believed or were aware at the time that the emails contained classified information. In the absence of clear classification markings, the prosecutors determined that it would be difficult to dispute the sincerity of these witnesses’ stated beliefs that the material was not classified.”
The key difference in these two situations is intent. Each of the statutes that Trump is alleged to have broken and that Clinton was investigated and, for all intents and purposes, cleared of breaking had a specific intent requirement, or mens rea. Clinton didn’t meet the intent requirement, but Trump allegedly does when you look at the lengths he went to conceal and hide the documents that he had.
Although Clinton deserves criticism for using an unsecured private server to conduct official business, she has been cleared in email security investigations conducted in 2017 and 2019 by the State Department under then-Secretary Rex Tillerson and then-Secretary Mike Pompeo. The only infraction was the use of the private server.
But Republicans, particularly in the House, are doubling down and rushing to his defense when they should be telling him to end his bid for the Republican nomination, or, like Goldwater, giving him a sobering analysis of the political landscape. He is the weakest general election candidate in the Republican field against President Biden, but he’s very much on his way to winning the nomination. Anything can happen, and we’re a long way out from November 2024, but Republicans may well be putting themselves in a position of another disappointing election night if Trump is the nominee.