What just happened? The Trump Indictment II

Since the first days of the investigation into former President Trump’s handling of classified materials, I have cautioned my friends to be careful about making up their minds before all the facts are in. Why? First off, it’s easy with Trump, as most people made up their minds long ago. Those with MAGA hats believe whatever he says; Trump-haters think that the end of getting him justifies the means. Both sides make the same mistake: thinking everything revolves around Trump. There have always been larger issues at stake.

https://www.politico.com/f/?id=00000188-a12f-db74-ab98-b3ff4de50000

Now we have the actual indictment brought forward and released by Special Counsel Jack Smith. I read it so you don’t have to. It is important to reiterate what Mr. Smith himself said about the presumption of innocence, as well as the point that an indictment lays out the basics of the prosecution case, but of course the defense will also have its say. Here’s what you need to know (pun intended):

• The indictment lists numerous highly-classified documents with descriptions suggesting they contain some of the most sensitive classified information. One initial concern about this case was that there are millions of classified documents, and all are not created equal. It is clear from the indictment Trump had very important documents, highly-sought after by enemies of the United States, and limited in access to very small numbers of authorized officials. This was not a case of small potatoes.
• Trump directed the handling of the documents at the White House, at Mar-a-lago, and several other times during his post-presidency period. The defense that he did not know about the documents, that perhaps a staffer mistakenly transferred them, is not viable. This was the defense Vice President Pence probably used (successfully) and it may well be what President Biden uses when his case comes to a conclusion.
• There is no suggestion that any of the material was compromised (seen or acquired by foreign governments). The random methods used to transport and store the material ironically practically ensured no one knew exactly what was there, or where it was. Any talking heads suggesting “damage to national security” are blowing smoke based on what the indictment holds, although there will be more investigation of this point.
• Trump openly admitted he knew the documents he was handling were “secret” (sic), “still classified,” and that he could no longer declassify them. This destroys his public defense that he automatically declassified them by thinking it was so while he was still President. He also showed classified materials on two occasions to people unauthorized to see them, although the indictment seems to indicate Trump was holding the document and waving it in front of the unauthorized persons, probably minimizing compromise.
• Trump publicly stated he was in compliance with the Presidential Records Act, which may or may not be true, but is irrelevant, since he was indicted under the Espionage Act and for conspiracy to obstruct justice, lying, and withholding. The Espionage Act does not require anyone to actually be a spy for another country; its provisions also extend to the mishandling or criminal neglect of classified information. Lying, withholding, and conspiracy are separate statutes.
• Trump just made the claim that only the President may determine which government records are “his,” and having done so, the records in question are governed solely by the Presidential Records Act. However, the classified documents in question are all products of various Executive branch agencies, and even if then-President Trump wrote notes on them, they do not become his personal records. That, and some are classified by law (the Atomic Energy Act, which even the President may not declassify) and marked “Restricted Data.” His claims here amount to telling the policeman who pulled you over for speeding on the interstate that you’re sober, you have a license, your car is properly registered, and you drive the speed limit on your home street. “what’s the problem, officer?”
• The obstruction and related charges are by far the most significant, as they have no technical defense a la the Presidential Record Act or the President’s authority over declassification. If Trump was charged under either of those cases, the indictment would be weak. As it is, the indictment is strong. Trump can’t claim the records were his or not classified; that doesn’t matter if he lied about having them, hid them, and induced others to join him in doing so.

The conspiracy et al charges are also the potentially weakest ones in the indictment. Why? Because they rest on two pillars: the efforts by Trump’s assistant, Waltine Nauta, to access/move/hide the records at Trump’s direction, and the communications the government seized between Trump and his first lawyer. Mr Nauta has a close personal relationship with Trump, and while he could avoid penalty by turning the prosecution’s witness, this is unlikely. The Trump Organization Chief Financial Officer went to federal prison recently rather than turn on Mr. Trump, and I would expect no less from Mr. Nauta. The fact that the government has highly-damaging communications between Trump and his initial lawyer rests on an earlier court ruling that suspends the attorney-client privilege in cases where the relationship was used in furtherance of a crime. This ruling will come up again in this trial, and if the evidence is thrown out, the conspiracy charges are greatly weakened.

If the conspiracy et al charges hold, Mr. Trump will have a hard time avoiding prison. Lying and covering things up were what brought Nixon down, and only a pardon spared him incarceration. If those charges fail, the most likely outcome is a fine or some other form of non-prison punishment. The notion that the United States would put a former President in prison for mishandling classified information is simply too great a reach. While some partisans would cheer for it, it would be a terrible precedent for the sitting President, too. I could foresee a plea deal, or even a pardon, if that is all that is left of the charges.

Finally, what about the comparisons to the handling of classified information by then-Senator/Vice President Biden, and then-Secretary of State Hillary Clinton? We simply don’t know enough about the Biden case to comment on it yet. Somebody moved the documents and left them where they were unsecured, but we don’t know who or under whose guidance. We also don’t know whether the documents were highly classified. We do know they were unsecured for years, and thus somebody was responsible for gross negligence.

The comparison to the Clinton case is what should be most galling to Trump’s supporters. Secretary Clinton willfully circumvented the rules, did so over an extended period of time, and the FBI found most likely some of the classified information was compromised. But she left no literal or figurative fingerprints on her actions. So Trump will find himself in federal court because he was too stupid, talked too much, and left a trail of classified bread crumbs leading directly back to himself. And with no one to blame but himself.