On Mr. Trump’s Indictment for Mishandling of Classified Documents

“For this man, who is basically a nihilistic moron, to go to jail, potentially for a long time – these Espionage Act charges bring very heavy sentences – to potentially go to jail for something so stupid and pointless and silly and useless is actually kind of fitting.”

• George Conway, MSNBC’S Morning Joe, June 6, 2023

As all are aware, former President Donald Trump has been indicted by a grand jury of Floridians for criminal mishandling of classified documents at his Florida Mar-a-Lago estate.  The counts include violations of the Espionage Act and obstruction of justice.  In the past, Mr. Trump has gone so far as to famously declare that a president can declassify documents “even by thinking about it” – the first reliance on the Think System I can recall since that of the fictional Professor Harold Hill in The Music Man.  A few impressions, likely none you haven’t had yourself.

First, the Wall Street Journal was quick to note that the indictment “mark[s] the first time in history that the federal government has brought charges against a former president.”  While true, this is irrelevant.  Federal charges would almost certainly have been brought against then-former President Richard Nixon for his part in the cover-up of the Watergate break-in had he not been pardoned by then-President Gerald Ford.  (Mr. Ford presumably wouldn’t have subjected himself to what he knew would be the ensuing political firestorm if he didn’t think federal charges against Mr. Nixon were in the offing.) 

Next – and as anyone with the barest modicum of knowledge about our criminal justice system understands — Mr. Trump was not – as Republican Speaker of the U.S. House of Representatives Kevin McCarthy tweeted after the indictment was announced – indicted by President Joe Biden.  Mr. Trump was indicted by a federal grand jury of ordinary (an adjective which I concede sounds inaptly deprecating) Floridians who determined from the evidence presented by Special Counsel Jack Smith’s team that there was probable cause to believe that Mr. Trump committed the crimes for which he will be arraigned.  Mr. McCarthy and other Republican officeholders are shamelessly and gutlessly pandering to a rabid and willfully ill-informed political base.  Their assertions about the “weaponization” of our legal system are a despicable betrayal of their official trust.  For Mr. McCarthy to pronounce in the same tweet that he believes in “the rule of law” is execrable hypocrisy.

I have seen liberal legal pundits bemoan the fact that the case has been brought in Florida, since the jury pool will be more favorable to Mr. Trump in Florida than in Washington, D.C.  I’m glad that it has been brought in the Sunshine State.  Since most of the allegedly illegal activities took place in Florida, Florida is obviously the more appropriate jurisdiction from a legal perspective (which is really what matters) but what will also make sense to the average citizen.  From a larger perspective, this prosecution must maintain credibility with the majority of Americans in the face of what will be a concerted effort by Mr. Trump and his cult to discredit it.  Mr. Trump not only has a right to, but America needs him to have, a trial in front of a jury that most Americans will consider balanced (presidents, present and past, have no “peers”).  Mr. Trump is entitled to the presumption of innocence until he is proven guilty.  I will venture that a notably larger percentage of our citizens would harbor doubts about the fairness of any guilty verdict issued by a Washington, D.C. jury than they will about one rendered by a Florida jury. 

Judge Aileen M. Cannon, whom Mr. Trump appointed to the bench in 2020, has been assigned to hear his case.  You may recall that Judge Cannon issued a number of rulings early in the documents investigation inappropriately favorable to Mr. Trump that were later sharply overturned by the United States Court of Appeals for the Eleventh Judicial Circuit, a conservative Circuit.  I find her selection highly unfortunate.  This case deserved the best that the United States District Court for the Southern District of Florida had to offer.  While I saw one legal pundit opine that he considered her suitable, it seems that by her earlier rulings Judge Cannon has proven herself to be incompetent, a partisan hack, or both.  The judge’s ability to influence the trial’s course and perhaps outcome is obvious:  it takes no prescience to predict the coming wrangling between Mr. Trump’s attorneys and federal prosecutors over jury selection, admissibility of evidence, and scheduling (with delay obviously favoring Mr. Trump).  While some legal analysts have suggested that Judge Cannon might be “chastened” by the harsh manner in which the Eleventh Circuit dispatched her earlier rulings favoring Mr. Trump, I am pretty confident that Mr. Smith and his team were disappointed that she has been assigned to preside.

My greatest concern is for the safety and protection of the jury panel.  An article appearing on uscourts.gov, “How Courts Care for Jurors in High Profile Cases,” states, “Federal judges have adopted a wide range of precautions to ensure that juries are protected from threats or harassment in high-profile cases.”  All precautions ever taken to protect federal jurors – and I suspect some new ones – should be employed to provide the panel the most stringent protections in the history of the federal judicial system.  The trial judge should make clear at the outset of the process that anyone that publishes or facilitates the publication of the name of any member of the jury or jury panel will be held in contempt of court – and slapped in jail until the judge would see fit to release them.  (If I were the judge, that would be as long as I could legally justify.) 

Both Mr. Trump and the Republican propaganda machine are in high gear, claiming that Mr. Trump is being treated unfairly as compared to President Joe Biden, whose staff discovered classified documents from Mr. Biden’s days as Vice President at Mr. Biden’s Delaware estate and in his Washington, D.C. office.  I’ve noted earlier in these pages the likelihood that the average citizen will tend to conflate the actions of Messrs. Trump and Biden.  I think there is a substantive difference in the behavior of the two men, but my notions could not be any more irrelevant.  Since Mr. Biden’s activities are being investigated by Special Counsel Robert Hur, a former U.S. Attorney appointed by Mr. Trump, Mr. Biden’s circumstances should be left to Mr. Hur and his team.  I would submit that if Mr. Hur determines that there is evidence that Mr. Biden committed a crime and issues a report, similar to the Mueller Report, implying that he would seek a federal grand jury indictment against Mr. Biden if Mr. Biden was not president, so be it.  If evidence is presented to a federal grand jury after Mr. Biden leaves office and a federal indictment is thereupon issued against Mr. Biden, Mr. Biden will then face a jury.  That’s the way the system works.

But as to Mr. Trump:  Make no mistake; the game is now on.  While the Wall Street Journal declared in a weekend editorial that federal prosecutors “fail to understand what they’ve unleashed,” I – unlike Mr. McCarthy — do believe in the rule of law, and there was obviously enough evidence against Mr. Trump to bring this prosecution.  (On Fox News over the weekend, Trump Administration Attorney General William Barr, who unconscionably defended Mr. Trump in various ways for years, called the indictment “damning.”)  That said, I agree with the Journal that we have now entered a perilous period, but not for the reason it cites.  Assuming that Mr. Trump doesn’t enter a plea bargain – seemingly highly unlikely, given his character – there will ultimately be one of three outcomes here:  a conviction, which probably removes any possibility of his gaining the votes of a sufficient number of swing state swing voters to win the presidency; a hung jury, which I suspect will marginally help him – which, if it does, could be decisive in a close presidential contest; or an acquittal, which will afford him both vindication and seeming proof that the system was, as he has claimed, rigged against him.  The last of these could well win him re-election.  Mr. Conway’s wry observation aside, remember O.J. Simpson; now that Mr. Simpson is on parole after completing his minimum nine-year sentence for armed robbery and kidnapping, I am sure that we are all confident that he has resumed his search for the “real killers” of his wife, Nicole.      

Enough.  As Mr. Trump himself has probably already observed:  We’ll see what happens.