October 1, 2023

The first-ever federal prosecution of a once and possibly future president threatens to be a fraught national experience that may harden beliefs and widen divisions in America’s already polarized political environment.

The 38-count indictment of former President Donald Trump and an aide alleges obstruction and mishandling of classified materials, including documents concerning nuclear programs and potential vulnerabilities of the United States and its allies. But even before the charges were unsealed, Democrats and many Republicans in Washington were reacting to the news as if commenting on entirely different events.

To Democrats and some Republicans critical of Mr. Trump, the 49-page indictment is indicative of the rule of law and the principle that no person is above it. They say Mr. Trump brought the charges on himself by taking classified documents and refusing to return them, despite being asked repeatedly to do so.

“The rule of law is central to the integrity of our democracy. It must be applied without fear or favor,” tweeted House Minority Leader Hakeem Jeffries on Friday.

Many Trump supporters, on the other hand, question the legitimacy today of the very institutions that symbolize U.S. law and order. House Republican leaders publicly decried what they called the “weaponization” of the Department of Justice against President Joe Biden’s chief political opponent.

“This sham indictment is the continuation of the endless political persecution of Donald Trump,” said Majority Leader Steve Scalise of Louisiana in a statement after news of the indictment became public.

Thus Mr. Trump’s legal jeopardy has become entwined with the nation’s entrenched political rifts. Perhaps that should not be surprising, given that one of the former president’s most consistent political messages has been that American institutions – the media, career politicians, the federal bureaucracy, even the FBI and the Department of Justice – are his adversaries.

For Mr. Trump, politics may now be the best defense, says Jamil Jaffer, former Justice Department lawyer and executive director of the National Security Institute at George Mason University’s Antonin Scalia Law School.

A case can’t truly be judged until all evidence is presented, but given what is publicly known at this point, it appears Mr. Trump did illegally retain documents he knew were classified.

“The rest of his legal defenses don’t seem particularly good right now based on the facts we’ve heard reported this far,” says Mr. Jaffer.

The indictment

Former President Trump is facing 37 felony charges related to the mishandling of classified documents, according to an indictment unsealed on Friday afternoon.

The documents retained at Mr. Trump’s Mar-a-Lago estate dealt with a wide variety of sensitive military secrets, from information about U.S. military programs, defense and military capabilities of various foreign countries, and potential vulnerabilities to military attacks, according to the indictment.

Mr. Trump twice disclosed classified information from these documents in private meetings to people who lacked security clearances, the indictment alleges. In one instance, he disclosed a Pentagon plan of attack against an adversary nation – identified by media reports as Iran – with a writer and publisher working on a memoir for his former chief of staff, Mark Meadows.

In another, he waved a classified map of an unnamed country in front of an official from his own political action committee.

Mr. Trump “told the PAC representative he should not be showing the map to the PAC representative and to not get too close,” states the indictment.

Indicted with Mr. Trump as a co-conspirator is Waltine Nauta, the former president’s personal aide and valet. Mr. Nauta is accused in the indictment of conspiracy to obstruct justice and of lying to the FBI about his knowledge regarding the movement of boxes of papers that contained classified documents.

Prosecutors allege Mr. Nauta helped facilitate transport of the boxes from the White House to various storage sites at Mar-a-Lago. The boxes were kept at various times on the estate’s ballroom stage, in the business center, and in a shower and bathroom, according to the indictment. Eventually a storage room on the ground floor was cleared for the boxes.

In December of 2021, Mr. Nauta found several of the boxes fallen and their contents spilled on the floor, including a document that was clearly classified and marked for distribution to only the closest U.S.-allied nations.

Informed of the spill by text, another Trump employee replied, “oh no oh no,” the indictment says.

Mr. Nauta also allegedly helped move boxes out of the storage room in a shell game to hide them from Trump lawyers making an inventory as well as representatives from the National Archives.

One of the most potentially damaging parts of the indictment may be the recollections of a Trump attorney regarding a meeting with the former president following a May 11, 2022, grand jury subpoena ordering production of all remaining classified documents in Mr. Trump’s possession.

Mr. Trump said at the meeting, as paraphrased by the attorney: “I don’t want anybody looking, I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes.”

He also allegedly said, “Wouldn’t it be better if we just told them we don’t have anything here?”

Reactions from GOP rivals

One aspect of the relative GOP unity behind Mr. Trump to this point may be surprising: A number of his rivals for the party’s presidential nomination are not taking the opportunity to criticize him for his alleged retention of classified information and obstruction of justice.

Florida Gov. Ron DeSantis joined the House GOP in echoing a general charge of “weaponization” of federal law enforcement, which he said in a tweet “represents a mortal threat to a free society.”

Mr. Trump’s competitors are in an unprecedented and difficult situation, says Keith Gaddie, a political scientist at Texas Christian University. On one hand, they need him to be gone if any of them is to win the nomination. On the other, they probably need to run on a platform similar to his to become the nominee.

“One thing we shouldn’t be doing in analyzing this environment is looking to history for analogs, because they’re just not going to serve us,” says Professor Gaddie.

The Department of Justice also appears to be moving in its own way to fill some of the information vacuum that initially allowed Mr. Trump and his supporters to attempt to shape the public’s view of the indictment.

Prosecutors released the full 49-page indictment on Friday, several days prior to Mr. Trump’s scheduled appearance before a federal judge in Miami on Tuesday afternoon. And special counsel Jack Smith made a brief public appearance on Friday afternoon, speaking from his nondescript office in northeast Washington.

Mr. Smith defended his investigation and the ethics of those conducting it.

“Our laws that protect national defense information are critical to the safety and security of the United States and they must be enforced,” Mr. Smith said. “Violations of those laws put our country at risk.”

He said that defendants must be presumed innocent until proven guilty and that he would “seek a speedy trial in this matter consistent with the public interest and the rights of the accused.” In a video about the indictment, Mr. Trump maintained, “I am an innocent man.”

Measured statements by the special counsel may help defend against the accusations of politicization and corruption that are now a staple of Trump supporters’ rhetoric. But if elected GOP leaders and Mr. Trump’s primary rivals continue to back the former president on this matter, a core of Republican voters likely will as well, says Jennifer Lawless, a professor of politics at the University of Virginia.

“I don’t think the Department of Justice can do anything at this point” to change GOP voter opinion, says Professor Lawless. “I think that it’s up to fellow Republicans to determine whether this crossed the line.”

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