The former US President is going to find it extremely difficult to explain his obstructionist actions.
Last Thursday, former US president Donald Trump was indicted, for a second time, on serious criminal charges. Unlike the hush money and tax evasion case brought by the elected Democratic district attorney in Manhattan, the new charges stem from the very federal government that Mr Trump used to lead. Thirty seven counts regarding core national security concerns have been brought by an independent, non-partisan, special prosecutor, Jack Smith.
Before they had even seen the indictment, Republican leaders rushed to Mr Trump’s defence, accusing US President Joe Biden of being personally responsible, even though both he and attorney general Merrick Garland, who appointed Mr Smith, ensured that there was no political input from the administration. A personal aide, Walt Nauta, who followed Mr Trump from the White House into private life, is accused of physically moving and concealing from the authorities boxes of allegedly purloined classified documents.
The substance of the indictment is devastating, including an apparent”smoking gun”: audio of Mr Trump apparently waving around highly sensitive military planning documents while declaring them classified and noting that while he was president he could have declassified them, but, out of office, he no longer could.
That not only adds almost irrefutable proof that Mr Trump deliberately absconded with classified material, and that his claims to have created a system whereby any document he removed from White House offices were automatically declassified are nonsense. All of his former senior officials have scoffed at the idea, which flouts the official declassification process to which even presidents must adhere.
Even if the documents were declassified, the Presidential Records Act mandates that all presidential documents be transferred to the National Archives, and the Espionage Act prohibits any unauthorised removal of government documents and, especially, their dissemination. The indictment outlines at least two cases of dissemination, wherein highly sensitive classified documents were shown to individuals with no security clearances whatsoever.
Mr Trump is going to find it extremely difficult to explain away his obstructionist actions and statements, such as asking his aides: “Wouldn’t it be better if we just told them we don’t have anything here? … Look, isn’t it better if there are no documents?” exactly as his attorneys eventually falsely attested; or when he praised an attorney who had allegedly destroyed official documents; or when he instructed Mr Nauta to move 64 boxes of documents just before authorities were coming to search for classified material.
The indictment details with photographs how these boxes including some of the most highly sensitive US government information involving military plans against key adversaries, one country’s support for terrorist activities, and the nuclear capabilities of other states were piled high on an open stage at his Florida hotel. Many were then moved to a nearby bathroom, and after that disseminated among offices and storage places, none of which had adequate security – if any at all – and which were accessible to virtually anyone coming and going and what amounted to an open public space.
Any hostile intelligence services that failed to take advantage of this extraordinary opportunity must be kicking themselves. Unlike the dull and technical Manhattan charges, any American juror will readily understand these laws and why it is unacceptable, from a national security perspective, to have them broken, especially in this cavalier manner.
Mr Trump’s attorneys will no doubt argue that because other senior former officials like Mr Biden, Mike Pence, and Hillary Clinton were found to be in possession of sensitive materials after they left office, he is being unfairly singled out. However, none of them attempted to conceal the material from the authorities or obstruct justice.
The case appears so strong that Mr Trump’s best option may be to try to obstruct and delay proceedings so endlessly that they continue beyond his lifetime. In that, he may have an invaluable ally: Judge Aileen Cannon, who will be presiding. She was one of Mr Trump’s last appointments, and at a hearing last September granted his outlandish requests, including restricting government access to its own classified documents.
Her ruling was harshly struck down by a highly conservative appellate court, and she is now widely regarded as one of the least competent and most pro-Trump judges in the country. That this evidently highly partisan judge would be appointed, apparently randomly, twice in a row on Mr Trump’s cases seems extraordinarily unlikely. Yet it has happened.
In a criminal trial, especially under close scrutiny, her rulings can probably only go so far in protecting him from a jury verdict. However, she could assist him by approving endless delays and otherwise making the government’s task as difficult as possible. But she may not end up presiding over the full trial after all, especially if Mr Smith makes a major effort to somehow secure any other judge in the Southern District of Florida.
Mr Trump’s reaction was predictably outrageous. He denounced the entire law enforcement system, called Mr Smith “a psycho,” and declared himself “an innocent man” victimised by yet another “witch hunt”. He also hinted at violence by his supporters, and authorities are preparing for that. But his mayhem-prone supporters may be incarcerated or deterred by the long prison sentences given to ringleaders of the January 6 insurrection.
A bigger complication than threats of mayhem is how unprecedented this trial will be. Mr Trump is not only the former president, he’s also the current front runner for the Republican presidential nomination.
Ms Cannon, in her widely derided September ruling, argued that former presidents and current candidates deserve special consideration and safeguards. This was firmly and specifically rejected by the appellate court, but there’s every danger that, if she is the trial judge, she will continue to kowtow to the former president.
If she continues to carve out special protections for Mr Trump, Mr Smith may find his mountain of damning evidence repeatedly sidelined, or the proceedings endlessly delayed. The first task of the special prosecutor, then, is to do everything possible to secure a different, more competent, and less shamelessly biased judge for the full trial.
But for the country, the result of the 2024 election is infinitely more important than the outcome of this trial. Mr Trump has been frank about his authoritarian intentions. Whether he ever goes to prison or not, politically, the verdict is already in: he cannot be allowed anywhere near the White House ever again.