Donald Trump was arrested and arraigned today—without incident—and he has now pleaded not guilty to 37 charges tied to the alleged mishandling of classified documents. But before we see more possible indictments (from Georgia or the January 6 investigation), Americans should not lose sight of the astonishing charges read to Trump today in Florida.
Perhaps former Attorney General William Barr—not a man I am given to quoting approvingly—said it best:
I was shocked by the degree of sensitivity of these documents and how many there were ... and I think the counts under the Espionage Act that he willfully retained those documents are solid counts … If even half of it is true, then he’s toast.
I’m not so sure about the “toast” part. Trump lucked out by drawing Judge Aileen Cannon, whom he appointed and whose last involvement with one of his cases produced a decision so biased in his favor and so poorly reasoned that a federal appeals court—including two more Trump appointees—overturned her ruling in a judicial body slam. And a Florida jury raises the odds that someone on the panel will simply refuse to convict no matter how strong the case. (MAGA emotions are running high: Trump’s former aide Steve Bannon—the beneficiary of a last-minute Trump pardon—reacted to Barr’s comments with a warning: “We’re gonna shove this up your ass, okay?”)
Let’s just say that I will be pleasantly surprised if Trump one day faces anything worse than a few rounds of golf with an ankle monitor. But before the inevitable blizzard of motions and delays and general mayhem, I thought we should review the actual charges in the indictment itself.
First, here’s what the government claims Trump took to Florida:
The classified documents TRUMP stored in his boxes included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack. The unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods.
Remember, no one on the Trump team is really disputing this. Some Republicans, in a desperate struggle with reality, are suggesting that Trump did nothing wrong, but Trump—who cannot stop talking—says he had the right to take anything he wanted, especially after rendering the documents harmless using the Kreskin Declassification Method.
But perhaps the materials were at least in a safe place:
Between January 2021 and August 2022, The Mar-a-Lago Club hosted more than 150 social events, including weddings, movie premieres, and fundraisers that together drew tens of thousands of guests.
Ah. But Trump has a Secret Service detail; could they help protect the documents?
[The Secret Service] was not responsible for the protection of TRUMP's boxes or their contents. TRUMP did not inform the Secret Service that he was storing boxes containing classified documents at The Mar-a-Lago Club.
Oh.
Meanwhile, Trump’s aides—including his alleged co-conspirator, Walt Nauta—were moving this stuff around. (Nauta was indicted on six counts, including obstruction and making false statements, and he has not yet entered a plea; he requested an extension on his arraignment, now set for June 27.) When some of the boxes toppled over, Nauta apparently took a picture of classified material:
On December 7, 2021, NAUTA found several of TRUMP’s boxes fallen and their contents spilled onto the floor of the Storage Room, including a document marked “SECRET//REL TO USA, FVEY,” which denoted that the information in the document was releasable only to the Five Eyes intelligence alliance consisting of Australia, Canada, New Zealand, the United Kingdom, and the United States. NAUTA texted Trump Employee 2, “I opened the door and found this …” NAUTA also attached two photographs he took of the spill. Trump Employee 2 replied, “Oh no oh no,” and “I’m sorry potus had my phone.” One of the photographs NAUTA texted to Trump Employee 2 is depicted below with the visible classified information redacted.
The only thing missing here is “Yakety Sax” as a soundtrack.
But perhaps Trump misunderstood or didn’t realize what he had, and he wanted to cooperate with the government to get the papers back where they belong? Unfortunately, one of Trump’s own lawyers made sure to memorialize Trump’s comments on that issue—because lawyers, despite the Stringer Bell Rule, know when to protect themselves by taking notes:
Well what if we, what happens if we just don’t respond at all or don’t play ball with them?
Wouldn’t it be better if we just told them we don’t have anything here? Well look isn’t it better if there are no documents?
In one of the more widely publicized moments described in the indictment, Trump was apparently recorded, during a meeting with a writer working on a book (who was accompanied by his publisher) and two of Trump’s staff, saying that he had a U.S. war plan against a foreign nation (read: Iran) in his hand. He is recorded as admitting that the document is classified and that he no longer has the power to declassify it. But for those of us who have worked with classified information, Smith adds an important detail:
At the time of this exchange, the writer, the publisher, and TRUMP’s two staff members did not have security clearances or any need-to-know any classified information about a plan of attack on Country A.
If this happened, Trump released classified information to people who should not see classified information.
This incident is particularly galling because one of the president’s former attorneys, Robert Ray, has been arguing that although the charges in the indictment are serious, they don’t show evidence of damage to U.S. national security. This is a risible claim: No one, at this point, can say with any confidence whether American national security has or has not been damaged. We do not live in a movie where intelligence leaks produce clear and instant disasters.
But more to the point, even Ray admitted that the government doesn’t need to prove such harm; that’s not how any of this works. Trump faces 31 counts of “willful retention of national defense information,” not some notional charge of “actually damaging American security in some obvious way.” As a former Defense Department employee, I can only imagine what would have happened had I spirited boxes of classified information to my home and then, after my arrest, said, “Well, sure, I took it, but there’s no evidence I’ve hurt national security. At least not yet.”
Donald Trump is presumed innocent until proven guilty. Unfortunately, it will likely be a long time before we find out if our justice system is capable of holding a former president to account. But if these charges were leveled against any other American citizen, they would be, in Bill Barr’s words, toast.
In his first public remarks, since he pleaded not guilty to federal criminal charges on Tuesday, former President Donald Trump attempted to persuade his supporters that the case against him is completely illegitimate.
Though it seemed like his camp was initially reticent to address the specifics of the indictment, Trump went into a detailed defense before a crowd at his Bedminster, New Jersey golf club. He presented alternate histories, legal disinformation, and false claims of political victimization to craft a narrative that he seemed to believe his followers will accept as fact.
Overall, the speech previewed a strategy to neutralize the impact of a case that could stretch well into the 2024 election and beyond. It’s an effort that mirrors Trump’s successful approach to negating previous threats to his political power, including congressional investigations into his involvement in the January 6, 2021 insurrection and potential collusion between his campaign and Russia in the 2016 election.
In his remarks, Trump cast his second indictment — for allegedly refusing to return classified documents to federal authorities after he left the White House — as a plot against him, calling it “election interference” and “yet another attempt to rig and steal a presidential election.”
“Threatening me with 400 years in prison for possessing my own presidential papers… is one of the most outrageous and vicious legal theories ever put forward in an American court of law,” he said. “They ought to drop this case immediately.”
Trump might not be personally thrilled at being arrested for a second time, if only because he “thinks it’s not elegant,” as his former press secretary Stephanie Grisham told CNN. But he clearly recognized that this was a potential make-or-break moment for his campaign in the face of swirling doubts among the GOP donor class, and even some of his political allies who have said that the allegations, if true, make him unfit to be the nominee in 2024.
With the media spotlight on him Tuesday, Trump seized the opportunity to try to convince his party that the latest indictment is more about persecution than prosecution. And if history is any indication, pursuing that strategy may help Trump convince his supporters that he did not do anything wrong, even if a Miami jury ultimately finds him guilty of some or all of the 37 counts against him.
How Trump convinced his supporters that he could do no wrong
Trump argued Tuesday that he’s subject to a nefarious double standard given that his political opponents have never faced charges in connection to retaining documents from their public service.
As “evidence,” he cited cases involving President Joe Biden, his 2016 Democratic opponent Hillary Clinton, and former President Bill Clinton. In recent months, classified documents were found in Biden’s personal Washington office and at his Delaware home. Hillary Clinton used a private, unsecured email server while serving as secretary of state that stored discussions of classified information (but not classified documents themselves). And Bill Clinton kept tapes in his sock drawer documenting an oral history of his time in the White House.
What Trump failed to mention, of course, is that Biden promptly turned over those documents; there is no evidence that he or Hillary Clinton tried to obstruct justice; and a court found that Bill Clinton’s tapes were personal records that did not need to be turned over to the National Archives. None of those cases gave Trump license to keep classified documents in unsecured locations throughout his personal residence after leaving office and to flout a subpoena requiring that he turn them over.
Nevertheless, Trump’s entreaties seem to be working on the base: The crowd at Bedminster was vocally receptive to his pitch, at times interrupting him with pledges to back him in the GOP primary. Those supporters aren’t alone. A CBS News poll conducted June 9 and 10 — right after news of the indictment broke — that found 76 percent of likely Republican primary voters thought that the indictment was politically motivated and 61 percent said it didn’t change their views on Trump. And an even more recent Reuters/Ipsos poll found 36 percent of Republican voters said the second indictment made them more likely to vote for Trump. All that’s despite the fact that some prominent Republicans have admitted that the details of the indictment are damning if true.
If the strategy Trump unveiled at his golf course works, it wouldn’t be the first time he successfully convinced his supporters that it’s the Washington swamp — not him — that’s the problem.
Special counsel Robert Mueller found in 2019 that Trump’s campaign may have colluded with Russia to influence the 2016 election and identified multiple examples in which Trump possibly sought to obstruct justice during his investigation. He did not recommend that Trump be referred for criminal prosecution, in part because of longstanding Justice Department policy that a sitting president cannot be indicted.
In response, Trump blasted what he argued was unfair treatment by the FBI and called the investigation the “Russia hoax,” while often repeating the phrase, “no collusion.” He spawned a four-year (now failed) investigation into what he argued was a criminal conspiracy to frame him. After Mueller’s report was released, a sizeable majority of Republican voters consequently believed that he never obstructed justice and wanted Congress not to take any further action.
Similarly, even though the House January 6 committee found that there was enough evidence to convict Trump for his role in inciting the insurrection, his followers believed his rewritten history of what happened that day.
He called it a mere “day of protesting” and argued that the real crime was a stolen 2020 election despite lacking any evidence. He fed into false conspiracy theories about the insurrection being a false flag attack that involved Black Lives Matter and Antifa. He claimed that Capitol Police were “ushering” people inside the Capitol when they really had broken in. As of March 2023, more than half of Republicans still described the insurrectionists as participating in a “legitimate public discourse.”
Trump appears to believe that he can replicate that strategy of lies and obfuscation when it comes to defending himself in the court of public opinion while the federal criminal case against him proceeds. And it’s possible that winning the public relations battle is the only victory he really needs. If he’s elected president once again, the charges against him would likely become moot.
Watergate prosecutor Jon Sale weighs in on Donald Trump's Tuesday night speech: "There were one or two things he said, which if I were his lawyer, I would really cringe at." More: https://t.co/RjvcQC32X4 #DanAbramsLive pic.twitter.com/GnkOCiw8nw
— NewsNation (@NewsNation) June 14, 2023
Man arrested for rushing Trump motorcade as he left federal court in miami pic.twitter.com/m4TbkYXBJB
— Joel Franco (@OfficialJoelF) June 13, 2023