Expert opinions and closer scrutiny of the indictment against former President Donald Trump points to questions about the strength of the case and the legitimacy of procedures around obtaining evidence, even as the charges are serious.
Trump stands accused of illegally hoarding classified documents at his Florida estate after leaving the White House in 2021 and then lying and scheming to thwart government efforts to get them back.
The 49-page federal indictment charges Trump with 37 felony counts, including violating the federal Espionage Act and other federal statutes for allegedly conspiring to obstruct justice, making false statements, and concealing documents.
Trump aide Walt Nauta was charged as a co-conspirator and faces six felony counts.
The former president said in a video statement that any criminal charges will not stop him from running for president in 2024 while calling the various investigations against him “election interference.”
“I am an innocent man. I did nothing wrong,” Trump said.
Trump and Nauta are scheduled to make their initial court appearances on June 13 at the Wilkie D. Ferguson Building federal courthouse in Miami.
Some experts have called into question the strength of the case against the former president.
“If this indictment is as weak as it appears to be, from what has been disclosed so far, it may be the most dangerous indictment in political history,” law professor Alan Dershowitz told Fox News on Friday.
“It has to be at least as strong as the case against Richard Nixon, which we will remember led not to Democrats to demand his resignation, but Republicans, his own colleagues came to him and said, this case is so strong that we can’t support you,” Dershowitz continued.
“I haven’t seen any suggestion that Republicans agree with this indictment,” the professor added.
Trump’s allies in Congress have panned the charges as politically motivated and meant to hamstring his chances as the Republican frontrunner in the race for the White House in 2024.
“WITCH HUNT,” the House Judiciary Committee, which has been investigating allegations of political weaponization under President Joe Biden’s administration, wrote on Twitter.
But while Trump maintains his innocence and has downplayed the charges, other experts say the case against him may be stronger than some believe.
“It comes across as obviously a very strong case if it can be proven,” Mark Zaid, a Washington-based lawyer who works on national security issues, told the Associated Press. “I’m surprised as to how personally involved it alleges Trump was with respect to the documents,” he added.
Special counsel Jack Smith, who brought the case, made a brief public statement on Friday at his Washington office, signaling that he’s treating the case as a serious matter of national security.
“Our laws that protect national defense information are critical to the safety and security of the United States, and they must be enforced. Violations of those laws put our country at risk,” Smith said.
Trump faces 31 counts of willful retention of national defense information under the Espionage Act.
Each of the willful retention counts pertains to a specific classified document found at Mar-A-Lago marked “SECRET” or “TOP SECRET.”
Topics addressed in the documents include details about U.S. nuclear weapons, the nuclear capabilities of a foreign country and the military activities or capabilities of other countries.
The most serious charges carry potential prison sentences of up to 20 years each.
“I have never seen [federal prosecutors] fail against a current or former government official” when charging violations of the Espionage Act, national security lawyer Brad Moss told Semafor.
Still, judges have discretion in sentencing and first-time offenders, if convicted, rarely get anywhere near the maximum penalty. A likely major consideration in any sentencing is the fact that Trump is a former president of the United States.
While Trump’s defense team is likely to challenge whether some evidence can be admitted, the special counsel has “really lined up his ducks,” Daniel Richman, a professor at Columbia Law School and a former federal prosecutor, told Bloomberg.
Smith’s combination of video and audio evidence, combined with allegations of false statements and conspiracy to obstruct justice, make for a solid case, according to Paul Pelletier, another former federal prosecutor.
The indictment against Trump is “as strong a case as a prosecutor can have,” Pelletier told Bloomberg.
“Add national security risk to that mix, and Mr. Trump should be very worried.”
One of the more damning pieces of evidence cited in the indictment is an audio recording of a meeting in July 2021 between Trump and a writer, a publisher, and two members of his staff.
At that meeting, which took place at his golf club in Bedminster, New Jersey, Trump allegedly showed them and described a “plan of attack” against an undisclosed foreign country.
The indictment states that Trump said the attack plan had been prepared for him by the Department of Defense and a senior military official.
The meeting participants lacked security clearances, and Trump allegedly told them that the plan was “highly confidential” and “secret.”
Trump said that he could have declassified the document as president but conceded that he no longer had that power.
“Now I can’t, you know, but this is still a secret,” Trump said, per the indictment.
The other six felony counts brought against Trump in the indictment relate to alleged conspiracy, obstruction, and false statements. These, too, could result in a substantial prison sentence in the event of a conviction.
Nauta, a Trump aide whom prosecutors said moved dozens of boxes at his Florida estate at his direction and then allegedly lied to investigators about it, has been charged with conspiracy and other crimes.
News of the conspiracy charge raised questions in legal circles about whether someone had agreed to cooperate in the investigation in exchange for leniency.
Jack Sharman, a defense attorney who served as a special counsel to Congress for the Whitewater investigation, told Semafor that he’s “guessing” there is likely someone cooperating with prosecutors.
Unconfirmed reports citing an anonymous source indicate that an attorney for Nauta, Stanley Woodward, alleged in court papers that a prosecutor in the case tried to pressure him inappropriately to convince Nauta to cooperate.
Trump himself alleged on Truth Social that the prosecutor tried to “bribe [and] intimidate” Nauta’s lawyer by offering an “important judgeship” if his client “flips” on the former president.
The audio recording of the meeting at which Trump allegedly showed the “plan of attack” to people without security clearances is among a number of claims in the indictment that paint a picture of Trump handling classified documents casually.
The indictment says that Trump, who’s known for keeping mementos, kept hundreds of classified documents in cardboard boxes at his Mar-a-Lago club in Florida, which “tens of thousands of members and guests” visited between when he left the White House and when the FBI retrieved the documents in August 2022.
Trump allegedly had documents stored in various places around the resort, including a ballroom, a bathroom and shower, an office space, a storage room, and his bedroom.
The indictment says that, in August or September 2021, Trump showed a classified map of a military operation in a foreign country to someone working for his political action committee who also did not have a security clearance.
Trump acknowledged that he should not be showing the staffer the map and warned the individual not to get too close, per the indictment.
When a grand jury in May 2022 issued a subpoena for classified records at Mar-a-Lago, Trump apparently sought to defy the order, telling his attorneys, “I don’t want anybody looking through my boxes,” according to notes from a lawyer detailed in the indictment.
The indictment also says Trump told Nauta “to move boxes of documents to conceal them” from federal investigators, the grand jury, and one of his lawyers.
Trump’s lawyers turned over some records to authorities on June 3, 2022.
The FBI raided Trump’s residence on Aug. 8, 2022, and removed some two dozen boxes of materials, including 54 documents marked as secret and 18 marked as top secret.
On the same day that the special counsel released the indictment, Rep. Jim Jordan (R-Ohio) issued a letter to the Justice Department, calling into question the legality of the FBI raid on Mar-a-Lago.
In his letter to Attorney General Merrick Garland (pdf), Jordan laid out testimony from a former FBI official who testified to the GOP-led House subcommittee on the “weaponization” of government about the raid.
Jordan wrote that Steven D’Antuono, a former assistant director at the FBI’s Washington Field Office, told the committee the Justice Department “was not following the same principles” as with previous raids.
D’Antuono listed a number of “abnormalities” around the FBI raid that call into question its legitimacy.
Specifically, D’Antuono said that the FBI didn’t first seek consent to effectuate the search; that the FBI refused to wait for Trump’s attorney to be present before executing the search; that the FBI did not assign a U.S. Attorney’s Office to the matter; and that the Miami Field Office didn’t take the lead.
The FBI declined to comment when asked to respond to the claims in Jordan’s letter.
Besides questions about the legitimacy of obtaining some of the evidence, doubts have been raised about the strength of Smith’s case against Trump, in particular around conspiracy charges.
Parts of the indictment are based on recollections of a Trump attorney, who “memorialized” certain interactions between the two regarding the handling of the documents.
On June 2, 2022, Trump’s attorney identified 38 documents with “classified” markings and put them in a folder, which he sealed with tape before being ushered in by Nauta to see Trump, per the indictment.
The attorney was cited in the indictment as saying that he discussed the folder of classified material with Trump and how the material should be handled.
“Did you find anything? Is it bad? … Is it good?” Trump asked, according to the lawyer’s recollection, per the indictment.
The attorney told authorities that as they discussed the attorney taking the materials with him, Trump gestured in a way that suggested he wanted the attorney to identify “anything really bad” and “you know, pluck it out.”
The lawyer clarified, however, that Trump did not actually explicitly articulate such instructions beyond making that “plucking motion.”
Dershowitz, who said the indictment doesn’t meet the “Richard Nixon standard,” called the case against Trump “too close” to be brought against a presidential candidate.
Trump’s supporters in Congress, and others, have framed the indictment as part of a broader conspiracy between law enforcement and Biden to thwart Trump’s 2024 bid for the White House.
“Today is indeed a dark day for the United States of America,” House Speaker Kevin McCarthy (R-Calif.) said in a tweet.
McCarthy called it a “grave injustice” and said that House Republicans “will hold this brazen weaponization of power accountable.”
Sen. Ted Cruz (R-Texas) said in a tweet that “the weaponization of our Department of Justice against enemies of the Biden admin will do enormous damage to the rule of law & have a lasting impact.”
Smith, in his statement on Friday, insisted that he had charged Trump in part due to the importance of upholding the rule of law equally.
“Adherence to the rule of law is a bedrock principle of the Department of Justice, and our nation’s commitment to the rule of law sets an example for the world,” Smith said. “We have one set of laws in this country, and they apply to everyone.”
Some have questioned why, if the standard of justice is to apply equally to all, former presidential nominee Hillary Clinton did not face charges for mishandling classified information.
“We all remember when Hillary Clinton deleted 30,000 emails that she knew needed to be turned over. And those phones? Yep, they crushed those with a hammer. Nothing to see there, no reason to investigate,” Sen. Marsha Blackburn (R-Tenn.) said in a video statement posted on social media on Friday.
Biden, too, has not been charged with any crimes over his apparent mishandling of classified documents, nor in regards to other matters.
“Now that President Biden has been implicated in a $5 million bribery scheme, what they’re doing is trying to interfere with that investigation, and they’re going after President Trump,” she continued. “Two tiers of justice.”