(NewsNation) — With former President Donald Trump expected to be in court Tuesday to face 37 federal charges, it’s time for some straight talk about the indictment.
It’s time for some analysis about the charges and the defenses we have been hearing this weekend. A lot of what is being spewed in the partisan media is either misleading or just downright untrue.
This case has the potential to divide the country even further. Regardless of what you think about whether charges should have been brought at all, we need to move forward with one set of facts.
After we learned that the former president had been indicted, but before we saw the actual documents, I said I would wait for the details before passing any judgment on the strength of the case.
I also said that it would come down to how much evidence the special counsel had of intentional conduct that Trump knew he had classified government documents and that he personally took specific actions to hide them in response to a federal subpoena — that he did it on purpose.
And I went a step further. I also said that it should matter how sensitive the documents were, even if legally they were classified, and you could charge for that conduct.
I have long believed if you are going to charge the former president of the United States, who is now a leading candidate again, the standard should be higher. It must be higher. The consequences are too grave. So, the documents also needed to be more than just a letter to Kim Jong Un or something that was just technically classified.
Now that the 49-page indictment is out, any fair reading of the allegations would lead to the conclusion that this is almost a legal worst-case scenario for Trump.
I care much less about the photos of documents in places they shouldn’t have been, like ballrooms and bathrooms, and much more about the audiotape of him sharing highly classified plans for a potential military strike on Iran and admitting he could no longer declassify it.
Plus, the witnesses from inside Trump’s orbit reluctantly testifying that he instructed them to hide and lie, and maybe most importantly, the documents themselves appear to have been the most sensitive types. From U.S. nuclear programs to defense and weapons capabilities of the U.S. and foreign governments and even potential vulnerabilities to military attack for the U.S. and its allies.
While there is a legitimate, big picture debate to have over whether, even in spite of the evidence, this is all worth pursuing, as a legal matter, it’s not surprising that even the more pro-Trump legal analysts agree that the actual charges will present significant challenges for Trump in how to defend himself in court.
“There are some indictments that are just bare bones (…) These are witnesses who apparently testified under oath, gave statements to federal investigators, both of which can be criminally charged if they’re false,” attorney Jonathan Turley said on Fox News. “Those witnesses are directly quoting the president in encouraging others not to look for documents or allegedly to conceal them. It’s damaging.”
Former Trump attorney Timothy Parlatore said: “It does seem that they are saying that these 31, at least, they think that they can prove that these are national defense.”
Lawyer Alan Dershowitz told Fox News: “This is one that should be worrisome to the president …”
Former Attorney General Bill Barr said on Fox News: “If even half of it is true, then he’s toast. It’s a very detailed indictment. And it’s very, very damning.”
But what we are seeing from many political allies of the former president and from Trump himself is not a nuanced argument about the dangers of bringing this type of case. Instead, it’s often a combination of longshot legal defenses mixed in with more political ones, alleging bias and selective prosecution.
So, it’s important to address these before having a real discussion about whether, despite all of the evidence against him, charges should have been brought at all.
So, let’s tackle the four big ones:
-If this is a crime, why wasn’t Hillary Clinton charged?
-Did Trump have the right to declassify everything anyway?
-Does the Presidential Records Act give the president the authority to determine which documents are his and which should belong to the government?
-What about the classified documents Joe Biden had?
1: WHY WASN’T HILLARY CLINTON CHARGED?
In the Trump case, according to the special counsel, Trump was intentionally trying to hide very sensitive documents from the FBI after he received a subpoena.
Prosecutors in the Clinton case, on the other hand, determined that the evidence and facts showed a “lack of intent to communicate classified information on unclassified systems.” Especially since “none of the emails Clinton received were properly marked to inform her of the classified status of the information.”
According to a report from the DOJ inspector general, who investigated the decision not to charge after the fact, prosecutors concluded: “There was no evidence that the senders or former Secretary Clinton believed or were aware at the time that the emails contained classified information.”
Whether they were right or wrong (and I think it was very wrong to have that server), wrong doesn’t mean criminal. Prosecutors did not believe they could prove intent. That is critical.
But what about the more than 30,000 emails, which her legal team deemed personal and deleted from the server at her home? In retrospect, it was a mistake to delete what they did. But the inspector general concluded: “There was no evidence that Clinton or anyone else intended to conceal, remove or destroy the emails from the government systems.”
If you go through every piece of evidence as the prosecutors and the inspector general did, they didn’t believe there was evidence of corrupt intent. That is what the law requires.
And to those who say: Come on, Comey and the FBI clearly had it out for Trump and not for Hillary Clinton. They protected her.” The problem with that is that James Comey announced 11 days before the election that they were reopening the Clinton investigation even though it turned out there was nothing new.
Most importantly, the FBI never leaked there was an ongoing Russia investigation of Trump, which would have significantly hurt his campaign. If the FBI wanted to help Clinton and hurt Trump, you don’t announce the reopening of the Clinton investigation right before the election and you do announce that the Trump campaign is being investigated for its contact with Russians. Except that’s not what happened.
2: DID TRUMP HAVE THE RIGHT TO DECLASSIFY EVERYTHING?
It’s true that as president, Trump could have declassified everything, and even though the argument that he actually did is a very weak one, it’s irrelevant in the context of this case for two reasons.
One, the subpoena from May 2022 requested all documents with classified “markings” — not all documents currently classified. So, whether it was still classified isn’t the point. But more importantly, none of the charges allege illegal retention of classified documents.
He is charged with obstructing the investigation, hiding and lying about the documents after the subpoena was issued. The 31 charges for withholding highly sensitive defense information under the Espionage Act don’t hinge on whether any of it is classified, just on whether it’s “unlawful retention of defense-related information.” It seems there is no doubt it was defense related and it was retained.
But that brings us to number three, which is whether the retention of even these sensitive documents was illegal at all.
3: LOOKING AT THE PRESIDENTIAL RECORDS ACT
The reason the Presidential Records Act has not been mentioned much is because it’s almost certainly not relevant to the case. The argument Trump is making is related to a case of 79 audiotapes Bill Clinton made at the end of his presidency in preparation for a book and a lawsuit from a conservative group that alleged those tapes should be considered presidential records. The group claimed National Archives, not Clinton, should have been able to keep them.
In 2012, federal Judge Amy Berman ruled that in effect the case was moot because: “The (Presidential Records Act) does not confer any mandatory or even discretional authority on the archivist.”
“Under the statute,” she wrote. “This responsibility is left solely to the president.”
“Solely to the president” That’s language Trump’s team will argue means that it’s his decision, not that of National Archives, on what should be considered presidential records.
But, there are a number of major problems with that. First, the Clinton tapes were like a personal journal that he made for himself. Trump took highly sensitive government documents, and the courts have made clear that agency records, which many of these were, are not covered by the Presidential Records Act.
Think about it. Using the Trump team’s logic, the former president could take any and every government document no matter how sensitive and claim it’s his. Of course, that can’t be the standard.
But even if you think that it could apply, it’s almost certainly not relevant here for the charges of obstructing the investigation nor to the 31 counts for the willful retention of national defense documents. Those charges aren’t about a dispute between the National Archives and the former president about who should keep the documents, as was the case in the Clinton matter. This is a charge that the nation’s security was put at risk by the retention of the documents.
4: WHAT ABOUT BIDEN’S DOCUMENTS?
First off, let’s be clear. There is a special counsel investigating Biden. The counsel is a registered Republican and a Trump-nominated former U.S. attorney. So, we will see what happens.
We know former Vice President Mike Pence will not be charged.
It’s true that Biden’s personal lawyers found 10 classified documents, some marked “Top Secret,” in a box of other material in a storage closet at the University of Pennsylvania’s Biden Center. A “small number” of classified documents were also found inside the president’s garage at his Delaware home.
But there is no evidence at this point that he lied or intentionally tried to hide them. In fact, Trump initially handed over 15 boxes to the National Archives, including 67 documents marked as confidential, 92 documents marked as secret and 25 documents marked as top secret.
Then in response the federal subpoena, he turned over 38 more classified documents inside.
If he had handed them all over then, even after initially hiding them from National Archives, there would be no charges.
As for the 1,800 or 1,850 documents we keep hearing about, those are a collection of donated documents from Biden’s three-decade tenure as a U.S. senator from Delaware.
Unlike presidents who are subject to the Presidential Records Act, senators own their office’s documents and can keep them at their homes, donate them, give them to the media or whatever they want.
But here is where the argument really falls apart. Biden consented to two FBI searches at the university, searches that did not initially appear to turn up any documents with classified markings.
I have said it before. I think Trump’s indictment is bad for the country. It will and is further dividing us, but that doesn’t necessarily mean you don’t bring charges.
I thought the New York case was weak and politicized, but this is different. Even if it’s bad for the country, there is nothing to indicate it’s politicized.
Remember, this is the same DOJ that defended Trump over the objection of many on the left. First, in one of the cases E. Jean Carroll brought against Trump. Then last month, the DOJ stepped in and filed a motion to prevent the former president from having to testify, at least for now, in connection with a pair of lawsuits filed by former FBI officials Peter Strzok and Lisa Page. They are the FBI agents who sued after being removed from the Mueller investigation. The DOJ won the motion on behalf of Trump. They did not have to take those cases.
So, the evidence is there. There is little to indicate this decision from an apolitical prosecutor was somewhat politicized. But even despite all of that, it still leaves us with the big picture question of whether Trump should have been charged at all. And on that, I am not as certain. It’s hard to argue with all this evidence that you don’t move forward with the case, but I believe there is still a legitimate argument.
The views expressed in this article are those of the author, and not of NewsNation.