A Destructive Trump Indictment Do prosecutors understand the forces they are unleashing?
Whether you love or hate Donald Trump, his indictment by President Biden’s Justice Department is a fraught moment for American democracy. For the first time in U.S. history, the prosecutorial power of the federal government has been used against a former President who is also running against the sitting President. This is far graver than the previous indictment by a rogue New York prosecutor, and it will roil the 2024 election and U.S. politics for years to come.
Special counsel Jack Smith announced the indictment in a brief statement on Friday. But no one should be fooled: This is Attorney General Merrick Garland’s responsibility. Mr. Garland appointed Mr. Smith to provide political cover, but Mr. Garland, who reports to Mr. Biden, has the authority to overrule a special counsel’s recommendation. Americans will inevitably see this as a Garland-Biden indictment, and they are right to think so.**
The indictment levels 37 charges against Mr. Trump that are related to his handling of classified documents, including at his Mar-a-Lago club, since he left the White House. Thirty-one of the counts are for violating the ancient and seldom-enforced Espionage Act for the “willful retention of national defense information.”
But it’s striking, and legally notable, that the indictment never mentions the Presidential Records Act (PRA) that allows a President access to documents, both classified and unclassified, once he leaves office. It allows for good-faith negotiation with the National Archives. Yet the indictment assumes that Mr. Trump had no right to take any classified documents.
This doesn’t fit the spirit or letter of the PRA, which was written by Congress to recognize that such documents had previously been the property of former Presidents. If the Espionage Act means Presidents can’t retain any classified documents, then the PRA is all but meaningless. This will be part of Mr. Trump’s defense.
The other counts are related to failing to turn over the documents or obstructing the attempts by the Justice Department and FBI to obtain them. One allegation is that during a meeting with a writer and three others, none of whom held security clearances, Mr. Trump “showed and described a ‘plan of attack’” from the Defense Department. “As president I could have declassified it,” he said on audio tape. “Now I can’t, you know, but this is still a secret.”
The feds also say Mr. Trump tried to cover up his classified stash by “suggesting that his attorney hide or destroy documents,” as well as by telling an aide to move boxes to conceal them from his lawyer and the FBI.
As usual, Mr. Trump is his own worst enemy. “This would have gone nowhere,” former Attorney General Bill Barr told CBS recently, “had the President just returned the documents. But he jerked them around for a year and a half.”
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That being said, if prosecutors think that this will absolve them of the political implications of their decision to charge Mr. Trump, they fail to understand what they’ve unleashed.
In the court of public opinion, the first question will be about two standards of justice. Mr. Biden had old classified files stored in his Delaware garage next to his sports car. When that news came out, he didn’t sound too apologetic. “My Corvette’s in a locked garage, OK? So it’s not like they’re sitting out on the street,” Mr. Biden said. AG Garland appointed another special counsel, Robert Hur, to investigate, but Justice isn’t going to indict Mr. Biden.
As for willful, how about the basement email server that Hillary Clinton used as Secretary of State? FBI director James Comey said in 2016 that she and her colleagues “were extremely careless in their handling of very sensitive, highly classified information.” According to him, 113 emails included information that was classified when it was sent or received. Eight were Top Secret. About 2,000 others were later “upclassified” to Confidential. This was the statement Mr. Comey ended by declaring Mrs. Clinton free and clear, since “no reasonable prosecutor would bring such a case.”
This is the inescapable political context of this week’s indictment. The special counsel could have finished his investigation with a report detailing the extent of Mr. Trump’s recklessness and explained what secrets it could have exposed. Instead the Justice Department has taken a perilous path.
The charges are a destructive intervention into the 2024 election, and the potential trial will hang over the race. They also make it more likely that the election will be a referendum on Mr. Trump, rather than on Mr. Biden’s economy and agenda or a GOP alternative. This may be exactly what Democrats intend with their charges.
Republicans deserve a more competent champion with better character than Mr. Trump. But the indictment might make GOP voters less inclined to provide a democratic verdict on his fitness for a second term. Although the political impact is uncertain, Republicans who are tired of Mr. Trump might rally to his side because they see the prosecution as another unfair Democratic plot to derail him.
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And what about the precedent? If Republicans win next year’s election, and especially if Mr. Trump does, his supporters will demand that the Biden family be next. Even if Mr. Biden is re-elected, political memories are long.
It was once unthinkable in America that the government’s awesome power of prosecution would be turned on a political opponent. That seal has now been broken. It didn’t need to be. However cavalier he was with classified files, Mr. Trump did not accept a bribe or betray secrets to Russia. The FBI recovered the missing documents when it raided Mar-a-Lago, so presumably there are no more secret attack plans for Mr. Trump to show off.
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