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It Is Right to Make Donald Trump Answer for the Crimes He Is Accused Of Trump’s Misconduct Was Too Brazen Not to Charge
(about 8 hours later)
Donald Trump has been indicted. Again. And this time, it appears richly deserved, even if one includes special considerations related to the unique recent history of public officials mishandling classified documents. This article was updated to reflect news developments.
Before we dive into the details of the case, it’s important to restate the general principles that should govern any prosecution decision. The first principle, as I’ve argued, is that no person is above the law. That’s, of course, easy to say in the abstract, but perhaps a better way to frame it is that Trump’s status as a former president means that he should be treated no better and — crucially — no worse than ordinary American citizens. Donald Trump has been indicted. Again. And this time, it is richly deserved, even if one includes special considerations related to the unique recent history of public officials mishandling classified documents. The indictment is devastating, and the details are shocking. It’s hard to imagine a more brazen and irresponsible mishandling of our nation’s secrets.
“No better” means that Trump should face charges if, for example, I would face charges under similar facts. It really is that straightforward. In one sense, the indictment didn’t truly alter the basic narrative we’ve known for some time. Previous Justice Department court filings related to the Mar-a-Lago search warrant already made a series of damning claims against Trump. According to the department, in 2021 the National Archives and Records Administration corresponded with Trump’s team, hoping to obtain the “transfer of what it perceived were missing records from his administration.” In January 2022, Trump provided the archives with 15 boxes of records.
“No worse” means don’t stretch the law to indict the man. That may have been the case in March, when the Manhattan district attorney, Alvin Bragg, indicted Trump on charges related to hush-money payments made to the pornographic actress Stormy Daniels. As I explained at some length, there are real questions as to the legal sufficiency of Bragg’s complaint, including whether federal law pre-empts his state charges. It does not appear to be an easy case to make. When it reviewed the documents, it found 184 with classification markings and 25 marked “top secret.” The inclusion of such documents caused the National Archives to contact the Justice Department, which promptly began efforts to determine if Trump retained any additional classified information. After the F.B.I. found evidence that more boxes remained at Mar-a-Lago and they were “also likely to contain classified information,” the department obtained a grand jury subpoena demanding “any and all” records in Trump’s possession that contained classification markings. On June 3, 2022, the Trump legal team provided a small batch of files to department officials and included a sworn certification letter indicating that Trump’s custodian of records had conducted a “diligent search” to locate any documents responsive to the subpoena and that the custodian had produced all such documents.
But in the case of the new indictment by the special counsel, Jack Smith, “no worse” comes with an additional twist. Trump’s case is not the first high-profile instance of a senior public official mishandling classified information. Hillary Clinton comes to mind, and while the Department of Justice might be able to prosecute Trump under facts similar to those in Clinton’s case, it should not. I can think of few things that would damage the legitimacy of the American criminal justice system more than for the department to impose a double standard on Republican and Democratic presidential contenders. According to the Justice Department, this certification was not accurate. While the Trump team produced 38 additional documents bearing classification markings (including 17 marked “top secret”) in its subpoena response, the department believed that there were still more classified documents at Mar-a-Lago. On the basis of “multiple sources of evidence” indicating that the response to the grand jury subpoena was “incomplete,” on Aug. 8 the F.B.I. searched Mar-a-Lago. It claims that search uncovered more than 100 additional classified records, “including information classified at the highest levels.”
So in addition to evaluating the relevant law, the Justice Department should apply the same standard to Trump as it did to Clinton, the standard articulated by the F.B.I. director at the time, James Comey, in his public statement announcing that the bureau would not recommend prosecution. That much we already knew. But the indictment itself contains extraordinary additional details that should affect our understanding of the case. First, it makes clear that Trump possessed truly consequential national secrets. The classified information he squirreled away “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.”
As Comey said of Clinton’s storing classified information on a private server, “There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position or in the position of those government employees with whom she was corresponding about these matters should have known that an unclassified system was no place for that conversation.” Second, Trump’s storage methods were remarkably sloppy and insecure. The indictment includes a vivid photograph of a pile of boxes on a Mar-a-Lago stage, a ballroom where “events and gatherings took place.” Another picture shows “boxes fallen and their contents spilled onto the floor.” One of the spilled documents was plainly and clearly classified.
But Comey declined to recommend prosecution because he said he couldn’t find evidence that the Justice Department had prosecuted any case under similar facts: “All the cases prosecuted involved some combination of clearly intentional and willful mishandling of classified information or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct or indications of disloyalty to the United States or efforts to obstruct justice.” Third, the indictment contains evidence that Trump proudly and knowingly shared classified information with guests who did not possess security clearances, including sharing a military plan for a possible attack against a foreign country. During the conversation, Trump said, “See as president I could have declassified it.” He added, “Now I can’t, you know, but this is still a secret.”
Finally, the indictment provides detailed evidence of how Trump attempted to conceal classified information even while he was required to produce it pursuant to the subpoena. At one point, according to the indictment, before Trump’s attorney examined the boxes in the storage room, Trump directed his assistant to move 64 boxes from the storage room to his residence and take only 30 boxes to the storage room. He did this without informing his attorney, in effect concealing documents from his own counsel.
This level of misconduct should shock every American conscience. It is simply impossible to conceive of any other American engaging in similar misconduct without facing charges. Indeed, given what we know now, not charging Trump under these facts would be an immense scandal, an abject failure of the rule of law.
Caveats are still necessary. To say that the Trump indictment is credible and necessary is not the same thing as saying that he is guilty. We still possess only partial information, and he has not yet mounted his legal defense.
It’s also important to place Trump’s prosecution in its larger context. The general principle should be clear: No person is above American law. But perhaps a better way to frame it is that Trump’s status as a former president means that he should be treated no better and — crucially — no worse than ordinary American citizens or his political peers.
“No better” means that Trump should face charges if, for example, I would face charges under similar facts. “No worse” means don’t stretch the law to indict the man. That may have been the case in March, when the Manhattan district attorney, Alvin Bragg, indicted Trump on charges related to hush-money payments made to the pornographic actress Stormy Daniels. As I explained at some length, there are real questions as to the legal sufficiency of Bragg’s complaint, including whether federal law pre-empts his state charges.
But in the case of the new indictment by the special counsel Jack Smith, “no worse” comes with an additional twist. Trump’s case is not the first high-profile instance of a senior public official mishandling classified information. Hillary Clinton comes to mind. So in addition to evaluating the relevant law, a key question is whether the Justice Department is applying the same standard to Trump as it did to Clinton, the standard articulated in a public statement by the F.B.I. director at the time, James Comey.
Despite making clear that Clinton and her team “were extremely careless in their handling of very sensitive, highly classified information,” Comey declined to recommend prosecution because he said he couldn’t find evidence that the Justice Department had prosecuted any case under similar facts: “All the cases prosecuted involved some combination of clearly intentional and willful mishandling of classified information or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct or indications of disloyalty to the United States or efforts to obstruct justice.”
That’s the Comey test: no prosecution absent evidence of one or more of the factors above. I disagreed with the decision at the time and still disagree. I’m a former Judge Advocate General’s Corps officer, an Army lawyer who helped investigate classified information breaches when I served in Iraq, and I feel confident that I would have faced military charges under similar facts.That’s the Comey test: no prosecution absent evidence of one or more of the factors above. I disagreed with the decision at the time and still disagree. I’m a former Judge Advocate General’s Corps officer, an Army lawyer who helped investigate classified information breaches when I served in Iraq, and I feel confident that I would have faced military charges under similar facts.
But once the Comey test was articulated, it should be evenly applied. And thus the critical question for the political legitimacy — and not just legal sufficiency — of the indictment is whether there is evidence of intentionality or obstruction in the Trump case that was absent in Clinton’s. (This is the same question that should be asked of the mishandling of classified documents by Joe Biden and Mike Pence.)But once the Comey test was articulated, it should be evenly applied. And thus the critical question for the political legitimacy — and not just legal sufficiency — of the indictment is whether there is evidence of intentionality or obstruction in the Trump case that was absent in Clinton’s. (This is the same question that should be asked of the mishandling of classified documents by Joe Biden and Mike Pence.)
As of Thursday night, we had not yet seen the indictment, so there is a chance my assessment will change. But a review of the publicly available evidence indicates that Trump’s conduct likely does meet the Comey test. There is evidence of intentionality and obstruction. After reviewing the indictment, one verdict is indeed quite clear: The Justice Department had little choice but to charge Trump. The evidence of intentional misconduct and comprehensive obstruction of justice is just too strong. Any other decision would place presidents outside the rule of federal law and declare to the American public that its presidents enjoy something akin to a royal privilege. But this is a republic, not a monarchy, and if the Justice Department can prove its claims, then Donald Trump belongs in prison.
Justice Department court filings related to the Mar-a-Lago search warrant make a series of damning claims against Trump. According to the department, in 2021 the National Archives and Records Administration corresponded with Trump’s team, hoping to obtain the “transfer of what it perceived were missing records from his administration.” In January 2022, Trump provided the archives with 15 boxes of records. When it reviewed the documents, it found 184 with classification markings and 25 marked “top secret,” including some with extraordinary “H.C.S.” and “S.I.” markings. “H.C.S.” indicates classified information “derived from clandestine human sources; “S.I.” indicates information “derived from the monitoring of foreign communications signals by other than the intended recipients.” In other words, these documents were quite sensitive.
The inclusion of this information among the files in question caused the National Archives to contact the Justice Department, which promptly began efforts to determine if Trump retained any additional classified information. As the department told a federal court, the “F.B.I. developed evidence” that “dozens of additional boxes” remained at Trump’s residence at Mar-a-Lago and they were “also likely to contain classified information.”
The Justice Department then obtained a grand jury subpoena demanding “any and all” records in Trump’s possession that contained classification markings. What happened next is what makes this case quite serious for Trump. On June 3, 2022, the Trump legal team provided a small batch of files to department officials and included a sworn certification letter indicating that Trump’s custodian of records had conducted a “diligent search” to locate any documents responsive to the subpoena and that the custodian had produced all such documents.
According to the Justice Department, this certification was not accurate. While the Trump team produced 38 additional documents bearing classification markings (including 17 marked “top secret”) in its subpoena response, the department believed that there were still more classified documents at Mar-a-Lago. Its filing states that “the F.B.I. uncovered multiple sources of evidence” indicating that the response to the grand jury subpoena was “incomplete.” Even worse, “the government also developed evidence that government records were likely concealed and removed” from their storage area and “that efforts were likely taken to obstruct the government’s investigation.”
This is the evidence that precipitated the grant of a search warrant, and on Aug. 8 the F.B.I. searched Mar-a-Lago. It claims that search uncovered more than 100 additional classified records, “including information classified at the highest levels.”
These claims alone — if proved at trial — already provide evidence of intentionality and obstruction. Close observers of the case will note that I have not included an analysis of numerous news reports indicating that Trump engaged in even more egregious conduct, including ones that he was caught on a recording discussing a highly sensitive document detailing military plans for confronting Iran.
Before we see the indictment, we know only the broad brushstrokes of the possible claims. But those brushstrokes paint a picture of intentionality and obstruction, including allegations of efforts to conceal and remove documents and the false certification of a complete response to the grand jury subpoena.
Times news reports indicate that Trump is facing charges that include retaining national defense information, obstruction of justice, false statements, contempt of court and conspiracy. Each of those charges is substantiated even by the partial information we currently possess. The available evidence indicates that Trump’s conduct meets both the legal test for prosecution and the more lenient Comey test applied to Clinton.
To say that the Trump indictment is credible is not the same thing as saying that he is guilty. We possess only partial information, and he has not yet mounted his legal defense. But for now, the evidence seems sufficient to support an indictment. Indeed, given what we know now, not charging Trump would be the greater scandal. It would place presidents outside the rule of federal law and declare to the American public that its presidents enjoy something akin to a royal privilege. But this is a republic, not a monarchy, and it is right to make Donald Trump answer for the crimes he is accused of.
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