I've read over the federal indictment against Mr. Trump, and I fear the case isn't quite as strong as some commentators claim it is. I can see how a non-biased juror (if such an animal exists) can find reasonable doubt not to convict Mr. Trump. I also believe that the indictment makes certain arguments for public consumption that in my view are overwrought and borderline irrelevant to the case at hand.
So....this blog post, like Gaul, will be divided into three parts. In part 1, I'll state that I'm not a lawyer and don't have much legal training. I'll also make the usual claim that I really really truly truly believe that Mr. Trump is a bad person and really really truly truly probably committed the crime and really really truly truly deserves to go to jail. In part 2, I'll raise what I see as the political and legal weaknesses of the indictment. In part 3, I'll repeat my disclosures from part 1, and that won't matter because if anyone actual reads this (long) blog post, they'll accuse me of being a Trump apologist anyway. So it goes.
Part 1: Necessary disclosures
I'm not a lawyer, etc., etc.
- I'm not a lawyer.
- My only formal legal "training" is one undergraduate class in constitutional law, in which I got a B.
- Less formal legal training: I have casually read and followed the law and legal history: seminars open to the public; blogs like the Volokh Conspiracy; the occasional law review article; the occasional book about the law.
- I'm not an experienced reader of indictments. So I don't know what counts as a good or convincing indictment.
- I skimmed the indictment, but did not read it word for word.
Mr. Trump is bad and probably guilty
- I think Mr. Trump should be prosecuted, not pardoned.
- I believe that Mr. Trump knowingly violated criminal laws.
- I believe that those violations weren't mere technicalities.
Despite the above, I have grave reservations about deciding another person's guilt ahead of time and before I've had all the information. The indictment, as informative as it is, is not "all the information." It's a summary of the evidence the government says it has and the government says it can prove. It's not the evidence itself.
I also have grave reservations about sending people to jail, even people who deserve it. That doesn't mean I believe we shouldn't send people to jail, but it does mean I should at the least be wary before declaring, loudly and confidently, that we should "lock him up!"
That's especially true for me. I'm a non-lawyer and I consider myself an opponent of Mr. Trump. Precisely because I believe Mr. Tump and the movement he represents should be curbed and stopped--that's a good reason to be wary of my motivations for wishing him to jail.
Part 2: the indictment examined
I will examine the indictment both as a legal document and as a political document.
Political document
As a political document, the indictment engages in irresponsible innuendo about the nature of the crime Mr. Trump is accused of.
By saying the indictment is a "political document," I mean it's a document designed to be read by a "political audience"--i.e., an audience that has strong political interests in the outcome of the trial. By "political interests" I mean not only that the audience finds the case interesting or a matter of public concern, though I do mean that, too. I also mean: an audience that is invested in a certain political outcome. Using broad brushstrokes, that audience is roughly split between those who want Mr. Trump reelected or left off the hook and those who want to prevent his reelection and send him to jail. [Please read my update #1 below]
Simply saying the document is "political" is not a knock against the indictment. When you bring charges against a figure as public as Mr. Trump, the indictment cannot avoid being read "politically" in the sense that I mean it. I say that, though, to justify my decision to critique the indictment on "political" grounds.
So, I said the document engages in "irresponsible innuendo." Here's what I mean by that:
At several points, the indictment says Mr. Trump asked his attorneys to lie to federal investigators. Agt one point [see count 32, pages 34-35, paragraph 81], his request of his lawyers to lie is listed as the first step in a conspiracy to hide information from the feds.
Now, lying to federal investigators who are investigating a crime is itself a crime, if I'm not mistaken. But should it be a crime to ask your own lawyers to lie? Maybe, if the lawyers actually do indeed lie. But the lawyers don't seem to have actually lied, except by inadvertence. Mr. Trump apparently misled them into misleading the feds. Bringing up Mr. Trump's alleged request to his lawyers that they lie seems to me to violate attorney-client privilege.
I don't know. Maybe it doesn't violate privilege. And maybe the very act of asking a lawyer to commit a crime is a crime even if I think it shouldn't be. And of course, Mr. Trump's alleged request is only one step in the alleged conspiracy. I can certainly imagine that the conspiracy can exist and be proven even without Mr. Trump's alleged request.
But why bring it up? I submit it's to make Mr. Trump seem like a pretty bad and dishonest guy. Mission accomplished. If the accusation is true, then my prior belief about Mr. Trump is reconfirmed. But I'm not sure it's relevant.
Now, here's some more innuendo. The indictment [page 9, paragraphs 22 and 23], brings up public statements Mr. Trump made about classified documents in 2016 when he was running for office and in 2018, while he was president. The statements, as I read them, are public declarations that it's important to respect classified documents; that it's important to disclose them only to those who need to see them; that's important to observe the laws that limit access to them; and that people who violate those laws should be punished.
Those statements don't seem relevant to me. The crimes with which Mr. Trump is charged are not that he's a hypocrite. Making false statements about what the law is and should be when someone isn't under oath isn't a crime. I get that those statements seem to show Mr. Trump is a hypocrite and that he realized the general contours of what the laws were and are about classified documents. But they seem to have no bearing on whether Mr. Trump illegally retained documents or showed them to others. They might indeed have some bearing on whether Mr. Trump knew that what he allegedly did was wrong. But even so: those statements quoted in the indictment are so vague and anodyne, anybody could have said them.
Note that those comments are principally for public consumption. They're included in the preliminary material discussed in the indictment. They're not the substance of the counts against Mr. Trump. My main guess as to why those statements are included: to make Mr. Trump seem like the kind of person who would do what he's accused of. But I seriously suspect the prosecution would have brought its indictment even if no such statements could be found. And I believe that the indictment would be just as weak or strong without including such statements.
Final point of innuendo: the photographs of dozens of boxes of documents found in Mr. Trump's possession at his place in Florida.My reading of the indictment is that Mr. Trump had, maybe, 60 + very large boxes of documents and that the feds found, if I read it right, 102 actual classified documents [page 27, paragraph 75]. The actual counts against Mr. Trump list only about 31 documents.
And yet, the indictment includes photographs of the actual boxes.The implication for the less than careful reader is that all those boxes are crammed full of classified documents. They almost definitely weren't, or else we would have heard about it.
I have an acquaintance who is an archivist and has handled the papers of politicians, though none with the kind of importance that would put them into possession of top-secret classified documents. That acquaintance says I would be surprised to find that politicians are permitted keep many (as in, hundreds of boxes of) documents that one might think belong to the government entity.That acquaintance says the large boxes in the photos likely have more than 100 folders each, with each folder potentially having between one and dozens of documents. It's quite possible, my acquaintance says, that a very sensitive document could be holed away, unknown, in an unmarked folder inside a box.
Let me be clear. The allegations against Mr. Trump are that he hid some of the boxes, so the investigators didn't even get to look them over. Another allegation is that Mr. Trump allegedly showed specific documents that he knew to be classified and that he knew to endanger national security. The allegation is NOT that each of those boxes were full of top secret materials.
But then, why include the photographs? All I can really say is they're there for the shock value. The "shock" is for the public audience. The effect, I fear, is to imply that Mr. Trump was simply hoarding pounds and pounds of boxes filled to the brim with sensitive documents. Whether that implication is true or not, that's not the actual allegation the government is bringing against him.
Legal document
Now, turning onto the legal aspects of the indictment. Here, I'm unfortunately on shakier ground because (as I noted) I'm not a lawyer and because too much of my knowledge about prosecuting crimes come from shows like Law & Order and The Practice. Even if those shows give some good insight into how prosecutions work (a dubious prospect), they still deal primarily with state crimes and not federal ones involving national security. But "fools rush in...."
If I the defense attorney is allowed to make certain arguments and if a juror interprets those arguments with an open mind, I strongly suspect a juror may conclude that Mr. Trump is not guilty if "reasonable doubt" is the standard.
My first point concerns the charge that Mr. Trump asked his attorneys to lie. I could understand why someone might question whether that request should be a crime. Now if that question goes to show some sort of intent or state of mind, I would think a defense lawyer could argue that's privileged information.
My second point concerns the quotations that allegedly show Mr. Trump knew specific documents were classified (or top secret, or whatever).
It seems we have the quotations recorded and Mr. Trump, like Mr. Nixon, inexplicably authorized the recording. To paraphrase: the quotations say things like, "here is this specific top secret document about attacking ABC country and it's not declassified and because I'm no longer president I can't declassify it and I'm not supposed to show it to you [XYZ person with no security clearance and no reason to see the document]."
That seems about as damning as anything. But....we don't actually know it was the specific document about ABC country. I can see the defense lawyers wheedling about, saying Mr. Trump was purposefully lying to XYZ person and the person "forgetting" what exact document he or she was shown.
My third point is that most of the conspiracy charges seem to fall pretty heavily on Mr. Trump's alleged co-conspirator, Mr. Nauta. I can easily envision a scenario where Mr. Nauta takes the fall. Or if he flips and gives state's evidence, I can envision a set of testimony where the defense tries to lay the blame on Mr. Nauta and on Mr. Trump.
Part 3: no, I'm not a Trump apologist
Please, please, please re-read my disclosures from part 1 above.
Maybe I'm wrong. My concerns about the indictment as a "political document" might be just an example of my own unfamiliarity with how all that stuff works. My concerns about the indictment as a "legal document" might simply be weak tea, good enough for Bobby Donnell's Boston firm but not quite up to snuff in the real world.
Still, if I'm mostly wrong, I'm not sure I'm 100% wrong. I'm probably at
least a little bit right when it comes to the political theater aspects
of all this.
I'll leave with this observation:
Ken White seems to think the indictment is particularly strong. Mr. White 1) is a former federal prosecutor; 2) knows a lot about the criminal law; 3) knows a lot about Mr. Trump because he (Mr. White) has followed Mr. Trump's career since 2017; and 4) seems like an honest person. A person who knows whereof he speaks and who is honest deserves to have his view considered.
Update #1 [June 25, 2023]:
I wasn't clear on what I meant by "political document." I said the indictment was designed to be read by a "political audience," but I should have added three things. First, it was primarily designed to be read by a judge and grand jury. Second, the "political audience" is the general public. Third, in the general public, there is a "political audience" of people who have some interest in a certain outcome, who either want Mr. Trump convicted or exonerated (or somewhere in between).
Another point for an update: Here's a link to Ken White's podcast site, where he and Josh Barro talk quite a bit about Mr. Trump's current legal troubles [paywall applies for most podcast episodes]: <https://www.serioustrouble.show/>
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