Trump Indicted: What To Know and Look Out For

Image of Donald Trump courtesy of CNBC

After a long period of anticipation, the first of likely two separate sets of federal indictments dropped Thursday evening in the Southern District of Florida against ex-president Donald Trump. The charges revolve around his alleged illegal retention of national security documents and efforts to hinder and obstruct their return to the government. In historic terms, it is the first time a president will have to face federal charges; for our nation today, it is an important achievement for the rule of law and the principle that no one is above it, not even a former president.

At this point there are some things we already know, some things that are quite likely, and some that will have to await further details. Today we’ll take a high level view of the case and address some common questions. Once the indictment is unsealed, which may come before Trump’s arraignment on Tuesday of next week, we will know more specifics.

So here’s where things look from around 10,000 feet as we descend and get ready to land this plane.

The venue

A common response to hearing that the case against Trump will be tried in South Florida is, “Wait, Florida? Isn’t that good for him?” 

In some senses, yes. Florida was a state that voted for Trump and went deeply toward the GOP in the most recent election. There are certainly more MAGA faithful among potential jurors in Florida than in Washington, D.C. which went strongly against Trump in 2020. Further, the judiciary in Southern Florida is more conservative, especially the appellate judges of the Eleventh Circuit.

And ABC News reported Friday morning that the judge assigned to oversee his case is none other than Judge Aileen Cannon, who infamously worked hard on Trump’s behalf on the appointment of a Special Master and had to be smacked down by the appellate court for overstepping the law in some serious ways. He’s got to be pretty happy about that assignment, and it does complicate matters for Special Counsel Jack Smith and the Justice Department.

But in other senses, Florida is a bit less good for Trump. By bringing the case there, Justice Department officials cut off one avenue of attack from Trump’s legal team, which would have filed a motion for a change of venue had the case been brought in D.C. That would have burned months of time, making a trial date before the election problematic to schedule. (Though it’s possible that with Cannon presiding, if the case is not reassigned to remove the appearance of bias, as Prof. Joyce Vance suggests could happen, she may try to slow walk this case; we will have to see.)

There was also a high risk, under the venue case precedents in the D.C. Circuit, that the court would have agreed with Trump’s lawyers and found venue improper in Washington, D.C. After all, Trump’s willful retention of documents apparently began while he was in Florida only after authorities and the grand jury demanded their return. His efforts to obstruct the return also concern facts and witnesses primarily in Florida. Had the Department lost a venue motion, that could have jeopardized the whole case. So in many ways, Jack Smith’s hands were tied, and he had to try to bring the case where there was no risk of getting booted on venue grounds.

If it’s a expeditious trial that Smith wants, then South Florida is generally a good choice. It’s one of the “rocket docket” districts, known around the country for moving cases speedily forward to trial. Franklin Monsour, a former prosecutor from the Southern District of Florida, put it to Bloomberg this way: “If the prosecution team feels like it has a strong case and can move quickly, there’s no better place to charge a case than the southern district of Florida.” That of course has to be weighed against the possibility that Cannon, should she somehow remain presiding judge, will be in no hurry to get to trial. The extent to which she might be able to delay a trial, perhaps by allowing for a lengthy motion practice period, remains to be seen.

It’s worth noting that Trump also hasn’t had a great case track record in Florida federal court. On appeal from Cannon’s decisions, he faced consistent losses before the very conservative Eleventh Circuit, who are now fully aware of his attempts to delay and derail justice there. The appellate court also may be watching Cannon closely. Whether she will feel sufficiently humbled to play by the rules going forward is unclear.

Finally, and thinking this out further, imagine how much more powerful a statement it would be, and how much better for our democracy, were Smith to obtain a guilty verdict before a sympathetic judge and a jury that hails from Trump’s own backyard, where he is supposedly adored and revered, rather than in D.C., where he is ridiculed and loathed. The facts as we know them are very bad for Trump because he was literally caught with the documents in his office and his residence, and there is ample evidence he sought to prevent the FBI from recovering them. Smith believes he can win his case, even before a problematic judge, and even before a jury of Floridians. 

The charges

There are seven charges, some expected and some of them slight surprises. They break down, as far as we know, into three buckets.

Espionage. Trump is charged with willful retention of national defense secrets. This is a count under the Espionage Act of 1917. The important thing to note about this charge is that whether documents were or were not “declassified” at the time Trump retained them unlawfully isn’t really relevant.

As I wrote about earlier, the important question under the Espionage Act is whether the illegally retained documents related to the national defense, in that they were “closely held” and their disclosure would be “potentially damaging to the United States or useful to an enemy of the United States.” Trump’s protestations that he, as the president, could declassify documents at will won’t matter to whether he committed a violation of the Act.

One more thing: a federal judge, the Hon. Beryl A. Howell in D.C., already held that Trump likely is guilty of espionage under the Act. As she reportedly held in her order compelling the testimony and production of notes from Trump’s attorney, Evan Corcoran, “Other evidence demonstrates that the former president willfully sought to retain classified documents when he was not authorized to do so, and knew it.”

False statements. We don’t yet know much about what statements Trump made to the authorities. But his direct statements may not be all that comprise these charges. If Trump caused another person, such as his lawyer Corcoran or his valet Walt Nauta, to make false statements to the feds, Trump could be found guilty of this crime. 

For example, if he told Corcoran that all of the missing documents were located in the storage room Corcoran had searched, and that it was not necessary to search elsewhere, then Trump may be found to be the direct cause of Corcoran drafting a false statement to the FBI. That statement, signed ultimately by attorney Christina Bobb based on her best knowledge, claimed that a “diligent search” had been conducted and that there were no further documents. Trump may have known that the statement was false. It’s a big deal to lie to the FBI or cause someone else to lie on your behalf.

Obstruction of justice. There’s also plenty of evidence that Trump was part of a conspiracy to prevent the return of the national security documents. There’s video tape of his valet Nauta moving boxes back into the storage room at Mar-a-Lago, apparently after Corcoran had completed his review but just before the FBI arrived. One strong possibility is that Nauta helped Trump move classified documents out of his office and residence so that the FBI wouldn’t see them sitting out or find them there when they visited the next day.

And there are other witnesses to what Trump was up to on a regular basis, e.g., whether he often showed classified information to third parties. These included dozens of secret service agents who were brought in before the grand jury to testify. These are some of the most professionally observant people you could possibly ask for as witnesses.

Trump’s defenses

We got a taste over the course of the past few months of what Trump would likely argue at trial to prove he is an innocent man. None of these stands up very well, but let’s walk through them briefly anyway, using a handy CNN fact checklist, from which I have selected and condensed the facts here considerably.

Whatabout the other presidents. Trump claims that other White House occupants—Obama, the Bushes, Clinton—took documents with them but aren’t being prosecuted. He alone is being singled out, he claims. But what he’s largely talking about are the presidential records of these former presidents, which the National Archives, not the former presidents, moved out of the White House and to archival facilities. It’s simply apples and oranges. All his talk of documents being moved to “Chinese restaurants” and “bowling alleys” is a transparent effort to conflate the proper storage of archival records with his own improper retention of national security documents. With respect to classified documents found in the homes of Biden and Pence, as soon as they were discovered, they were returned. There was no “willful” retention at all, which makes Trump’s case quite distinguishable. (The Justice Department has already indicated that it will not be pursuing charges against Pence.)

They could have asked nicely. Trump claims that the search of Mar-a-Lago was some big, horrible overreach by the FBI, which could have simply requested their return. “ALL THEY HAD TO DO WAS ASK,” Trump posted on “Truth Social” after the search. Of course, they did ask. They subpoenaed him, in fact. There is no more direct way to ask. They even came down and asked for the rest in person. His lawyer handed over a Redweld folder, and another attested under oath, in writing, that this was it. But it wasn’t, and the FBI figured that out after speaking to witnesses and reviewing video tape footage.

I held talks like I’m supposed to. Trump often claimed that the Presidential Records Act contemplates a negotiated back and forth about documents, that the parties are supposed to “talk, talk, talk” about the return until it’s worked out. But the law is actually fairly clearly the opposite. The National Archives has custody and control of the documents the moment the president leaves office. If you think just a moment about it, it’s obvious why. Otherwise, ex-presidents would be incentivized to take as much with them as possible to use as bargaining chips against the Archives. This of course is precisely what Trump illegally did.

I declassified everything. Trump claimed in various ways that he declassified all documents that left the Oval Office in his possession, either by standing order or even just by thinking about it. After all, he was the president, so in his mind he had the final say. But there’s zero proof of this standing order, and in court his lawyers have not raised it, ever. And the idea that Trump believed he could declassify documents just by thinking it is belied by how he actually acted over documents he still considered classified. This includes a war plan allegedly drafted by General Mark Milley to invade Iran, which Trump claimed on tape he had no power to declassify or show to others. “As president, I could have declassified, but now I can’t,” Trump stated, according to a transcript of that recording reviewed by CNN.

Finally, as discussed above, “declassifications” is a red herring argument in any event, because the status of a document as classified or declassified is not relevant to an Espionage Act charge.

Looking ahead

We will learn a great deal more about the charges, evidence, facts and defenses as the case progresses. Look for a possible “speaking indictment” from the Justice Department explaining to the public the reasons for the indictment and the general nature of the evidence that Jack Smith and his team have collected, including potentially some specific items.

One final thought: The “rocket docket” of the South District of Florida, even if the case is overseen by Judge Cannon, might result in something wholly unexpected: a federal trial date that falls prior to the Manhattan trial now set for late March of 2024. This would be hugely important for the accountability narrative for the country, which generally and rightfully views the federal case for espionage and obstruction of justice as far more serious than the false business records matter in New York. 

So in my mind, the setting of the calendar in Florida for pre-trial motion practice, the prosecution’s disclosure of evidence to the defense, and the commencement of the trial could have the profoundest impact for our democracy, especially as the primary season gets underway. I’ll be keeping a close eye.

A guilty verdict against Trump on federal charges, especially one that falls prior to the first votes of the first GOP primary election, would go a long way toward answering Trump’s claim that this is all about “election interference.” To be clear, his MAGA base could and probably would vote for him anyway. But the American people deserve to know whether one of the major political parties will actually nominate a presidential candidate who has been convicted of federal offenses and is facing possible serious prison time.

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A personal note: I have been writing for some time now about what I viewed as inevitable indictments of Donald Trump on espionage and obstruction. It is one thing to posit the likelihood of charges, and another thing entirely to watch them land. Thank you for being along for the ride so far, and especially for supporting my efforts to bring greater clarity in our collective quest for accountability. I’m only able to continue to work in this capacity through the generous support of voluntary paid subscribers, and I deeply appreciate your trust in me.