Former US President Donald Trump faces serious federal charges over classified documents

William RobertsSunday 18 June 2023

Donald Trump’s ongoing legal travails are threatening to derail his bid for a second term as President of the United States. The Mar-a-Lago secret documents case involves serious federal charges, but it is dividing Americans over whether an ex-president should be prosecuted.

Trump was arraigned in Miami on 13 June on 37 counts, including of wilful retention of secret documents, conspiracy to obstruct justice, withholding and concealing US documents and making false statements. Trump has pleaded not guilty in the case. ‘This is an impressive case against the former president involving serious federal charges,’ says Dan Richman, Paul J Kellner Professor of Law at Columbia Law School and a former US prosecutor.

Trump could face decades in prison if convicted. Whether the case will go to trial is an open question. Former prosecutors say it could be March next year, or even after the 2024 US presidential election, before a jury could be seated. That raises all kinds of procedural and political quandaries. ‘Certainly, the government wants a quick trial,’ says Mauro Wolfe, Member of the IBA Criminal Law Committee Advisory Board and a white-collar litigator at Duane Morris in New York. Trump’s defence lawyers can file ‘all kinds of pretrial motions’ including claims that it’s a politically motivated prosecution, says Wolfe, who is also a former US prosecutor.

Polls show Trump is the leading contender among nine politicians who are seeking the Republican presidential nomination in 2024. Theoretically, Trump could run for president from prison, or even govern from there if elected. Both prospects seem wildly improbable. Having charges of mishandling US secrets hanging over him – while it may help to rally many supporters to Trump’s defence now – will hurt him in any general election.

This is an impressive case against the former president involving serious federal charges

Dan Richman
Paul J Kellner Professor of Law, Columbia Law School

A majority of Americans, 62 per cent, said it was believable that Trump illegally removed classified documents from the White House, according to a Reuters/Ipsos poll released on 12 June. In the same poll, 81 per cent of those identified as Republicans believe Trump’s prosecution is political.

Importantly for the credibility of the case against Trump is the fact that the former president is being prosecuted under the US Department of Justice’s independent counsel procedure, says Janusz Tomczak, Co-Chair of the IBA Criminal Law Committee and Head of the Business Crime and Compliance practice at Raczkowski in Warsaw. ‘What is happening now in the US, is the way it should be done,’ he adds.

After Trump refused to return documents and a Federal Bureau of Investigations raid at his Mar-a-Lago resort turned up classified material, US Attorney General Merrick Garland appointed Special Counsel Jack Smith to investigate and decide whether to bring charges. ‘The person who was appointed special prosecutor was really someone special, trusted and beyond doubt, a person who will professionally lead this investigation in an independent, impartial manner,’ Tomczak says. ‘From my perspective, it means that the system works.’

Trump claims he’s being targeted by President Joe Biden and his appointees at the Justice Department. It’s a narrative that’s being echoed at Fox News, which has the largest US cable television audience. But there has been a perceptible shift in how some of Trump’s former allies are talking about the case.

Former Vice President Mike Pence, former Secretary of State Mike Pompeo and former National Security Adviser John Bolton have acknowledged the US charges are serious. ‘If even half of [the indictment] is true, then he’s toast,’ Trump’s former Attorney General Bill Barr told the Fox News Sunday talk show. ‘It’s a very detailed indictment, and it’s very, very damning.’

The allegations involve dozens of cardboard boxes of papers, photos, letters and more than 100 intelligence and military documents that Trump took to his Mar-a-Lago resort in Florida when he left the White House in 2021. US presidents routinely receive intelligence briefings by the US Central Intelligence Agency and Pentagon officials that include top secret documents. While in office, the president has authority to seek declassification of US secrets. But once they leave office, former presidents become like any other US civilian and are not entitled to keep secret documents.

‘If Donald Trump had just responded to the National Archives folks after they contacted him repeatedly, if he had turned back the documents that he had, there would have been no questions asked. He never would have been charged, never,’ says Gene Rossi, a shareholder at law firm Carlton Fields in Washington, DC, and a former US prosecutor. Some of the documents in Trump’s files contained the country’s most closely guarded national security secrets and prosecutors claim these were left unsecured in a bathroom and a ballroom at Mar-a-Lago.

The 44-page indictment is what prosecutors call a ‘speaking indictment’ that lays out enough evidence to ‘blunt’ Trump’s argument that the charges are ‘a purely political witch hunt,’ Wolfe says. It includes photographs, text messages, recitations of testimony from witnesses close to Trump and a specific list of 30 classified documents the prosecutor says were illegally retained and withheld from the government.

‘Our laws that protect national defence information are critical to the safety and security of the United States and they must be enforced,’ said Special Counsel Jack Smith when the indictment was made public on 9 June.

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