The United States v. Donald Trump

Donald Trump was arrested and arraigned yesterday under the Espionage Act for the willful and deliberate retention of national security documents after leaving the White House and obstructing federal government efforts to recover the purloined documents, some of which reportedly contained extremely sensitive information that would thrill America's foreign adversaries should they ever gain access to them.  Disturbingly, the federal case is at least initially before the unqualified, arguably incompetent and likely highly biased Judge Aileen Cannon, a Trump appointee, who was basically severely bitch slapped by the 11th Circuit Court of Appeals for her improper rulings when the documents case first ignited (a column in the Washington Post examines why Cannon needs to be removed from the case).  While many Republicans motivated by perceived personal advantage and fear of the MAGA base continue to attack the Department of Justice and lie about Biden's role in the indictment - the indictment was handed down by a grand jury - the truth of the matter is that what Trump did was very dangerous for the safety of the nation and was all the result of Trump's refusal to return the government documents despite special treatment and deference (you or I would have simply been arrested at the get go).  A piece in The Atlantic looks at the case against Trump and Trump's mindset that he is above the law.  Here are excerpts: 

Donald Trump was arrested and arraigned today—without incident—and he has now pleaded not guilty to 37 charges tied to the alleged mishandling of classified documents. But before we see more possible indictments (from Georgia or the January 6 investigation), Americans should not lose sight of the astonishing charges read to Trump today in Florida.

Perhaps former Attorney General William Barr—not a man I am given to quoting approvingly—said it best:  I was shocked by the degree of sensitivity of these documents and how many there were ... and I think the counts under the Espionage Act that he willfully retained those documents are solid counts … If even half of it is true, then he’s toast.

I’m not so sure about the “toast” part. Trump lucked out by drawing Judge Aileen Cannon, whom he appointed and whose last involvement with one of his cases produced a decision so biased in his favor and so poorly reasoned that a federal appeals court—including two more Trump appointees—overturned her ruling in a judicial body slam. And a Florida jury raises the odds that someone on the panel will simply refuse to convict no matter how strong the case.

[B]efore the inevitable blizzard of motions and delays and general mayhem, I thought we should review the actual charges in the indictment itself.

First, here’s what the government claims Trump took to Florida:

The classified documents TRUMP stored in his boxes 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. The unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods.

Remember, no one on the Trump team is really disputing this. Some Republicans, in a desperate struggle with reality, are suggesting that Trump did nothing wrong, but Trump—who cannot stop talking—says he had the right to take anything he wanted . . .

But perhaps the materials were at least in a safe place: Between January 2021 and August 2022, The Mar-a-Lago Club hosted more than 150 social events, including weddings, movie premieres, and fundraisers that together drew tens of thousands of guests.

Ah. But Trump has a Secret Service detail; could they help protect the documents?

[The Secret Service] was not responsible for the protection of TRUMP's boxes or their contents. TRUMP did not inform the Secret Service that he was storing boxes containing classified documents at The Mar-a-Lago Club.

Meanwhile, Trump’s aides—including his alleged co-conspirator, Walt Nauta—were moving this stuff around. (Nauta was indicted on six counts, including obstruction and making false statements, and he has not yet entered a plea; he requested an extension on his arraignment, now set for June 27.) When some of the boxes toppled over, Nauta apparently took a picture of classified material:

On December 7, 2021, NAUTA found several of TRUMP’s boxes fallen and their contents spilled onto the floor of the Storage Room, including a document marked “SECRET//REL TO USA, FVEY,” which denoted that the information in the document was releasable only to the Five Eyes intelligence alliance consisting of Australia, Canada, New Zealand, the United Kingdom, and the United States. NAUTA texted Trump Employee 2, “I opened the door and found this …” NAUTA also attached two photographs he took of the spill. Trump Employee 2 replied, “Oh no oh no,” and “I’m sorry potus had my phone.” 

Unfortunately, one of Trump’s own lawyers made sure to memorialize Trump’s comments on that issue—because lawyers, despite the Stringer Bell Rule, know when to protect themselves by taking notes:

Well what if we, what happens if we just don’t respond at all or don’t play ball with them?

Wouldn’t it be better if we just told them we don’t have anything here? Well look isn’t it better if there are no documents?

In one of the more widely publicized moments described in the indictment, Trump was apparently recorded, during a meeting with a writer working on a book (who was accompanied by his publisher) and two of Trump’s staff, saying that he had a U.S. war plan against a foreign nation (read: Iran) in his hand. He is recorded as admitting both that the document is classified and that he no longer has the power to declassify it. But for those of us who have worked with classified information, Smith adds an important detail:

At the time of this exchange, the writer, the publisher, and TRUMP’s two staff members did not have security clearances or any need-to-know any classified information about a plan of attack on Country A.

If this happened, Trump released classified information to people who should not see classified information.

This incident is particularly galling because one of the president’s former attorneys, Robert Ray, has been arguing that although the charges in the indictment are serious, they don’t show evidence of damage to U.S. national security. This is a risible claim: No one, at this point, can say with any confidence whether American national security has or has not been damaged. We do not live in a movie where intelligence leaks produce clear and instant disasters.

But more to the point, even Ray admitted that the government doesn’t need to prove such harm; that’s not how any of this works.

As a former Defense Department employee, I can only imagine what would have happened had I spirited boxes of classified information to my home and then, after my arrest, said, “Well, sure, I took it, but there’s no evidence I’ve hurt national security. At least not yet.”

Donald Trump is presumed innocent until proven guilty. Unfortunately, it will likely be a long time before we find out if our justice system is capable of holding a former president to account. But if these charges were leveled against any other American citizen, they would be, in Bill Barr’s words, toast.

Trump remains a threat to both democracy and America's national security.