Trump’s indictment explained by criminal law expert

by The Insights

On June 9, 2023, federal prosecutors released the indictment that sets out the government’s charges against former President Donald J. Trump, accused of violating national security laws and obstructing justice.

The 49-page document details how Trump kept classified government documents – including documents regarding US nuclear capabilities – scattered in boxes across his home in his resort town of Mar-a-Lago in Florida, long after the end of his presidency in 2021 and the government tried to recover them.

The indictment also shows that Trump shared classified national defense information with people without any security clearances, including a member of a political action committee.

There are 38 felony charges against Trump — 31 of those charges relate to withholding national defense information. Five counts relate to concealment of possession of classified documents, and two relate to making false statements.

“My office will request a speedy trial in this matter, consistent with the public interest and the rights of the accused,” said U.S. Special Prosecutor Jack Smith, who was appointed to oversee the investigation into the documents being held by Trump.

The Conversation spoke with criminal law scholar Gabriel J. Chin of the University of California, Davis School of Law, about the key takeaways from the unsealed indictment — and the new open questions that it features on Trump’s alleged criminal activity.

The conversation: What is the significance of the Justice Department unveiling the indictment on June 9, before Trump surrenders to authorities?

Gabriel J. Chin: In the federal system, indictments are not automatically sealed, and so either the U.S. special advocate did not request that it be sealed, or a judge refused to seal it. I suspect it’s more likely the former. This is not a case in which active elements of the investigation are still ongoing. The case was ready to go and it makes no difference, from the government’s perspective, whether to release the indictment today or not, because the case is in the box.

What’s in the indictment?

One thing that really stood out was the significant personal involvement of Donald Trump himself in this alleged activity. Normally, when a large company is sued, the CEO doesn’t drop everything and start going through the documents. This is what various other professionals are for. The details of Trump’s alleged direct personal involvement in the matter were stark.

Second, one of the challenges here is that prosecutors are trying to hold Trump accountable for an affidavit that a lawyer signed that included false statements that Trump did not have the documents the government asked him to turn over. And for this case to last, prosecutors will really have to show that Trump himself was involved in this.

Count 32 of the indictment relates to the conspiracy and charges against Trump and his aide Walt Nauta, as well as “others known and unknown to the grand jury.” The United States Attorney General reserves the right to say that other people were conspirators, and that will have consequences. Who are these other people? Is the government’s theory that Trump’s lawyers were innocent dupes and that he fed them false information, or did they know participants in this crime? No one else is named, but we are told – by that “others known and unknown” – that there are certainly others.

Why did the indictment focus on moving boxes containing classified information to Mar-a-Lago?

The main reason is that all charges require some kind of intent. None of these charges would apply to someone trying to obey the law. Prosecutors must prove that what was happening here was an intentional and calculated act.

Another reason goes back to former Secretary of State Hillary Clinton, former Vice President Mike Pence and President Joe Biden, who faced their own investigations over possession of classified documents.

When former FBI Director James Comey said in 2016 that he was not indicting Clinton for using his personal email for government work, considerations prompted him to do so. People who make mistakes in good faith and cooperate in good faith are not charged because, first, it is difficult to prove wrongdoing. And there’s a level of fairness to saying that you don’t want to make public service a trap, where if you let your guard down for a second, you could end up in jail.

In this indictment, prosecutors strive to tell the full story and explain why the actions detailed are wrongful. They seem to want to explain why the circumstances of this case justified the charges and that it is not a “gotcha!” situation where someone has kept 200 cases of documents that have been carefully examined and one or two documents accidentally end up in the mix.

What is the significance of the many charges Trump faces?

According to sentencing guidelines, which are generally followed, a conviction on all counts could likely result in a relatively short sentence or no incarceration. However, it is important to note that in theory, Trump could be sentenced to the maximum on each count. Sentence on all counts could be served consecutively, leading to a sentence of around 400 years. I don’t think that would ever happen, but it underscores the power of the judge in sentencing in a case like this.

Gabriel J. Chin is criminal law specialist at the University of California, Davis School of Law

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