I’ve finally seen enough. Donald Trump will be indicted by a federal grand jury.
You heard me right: I believe Trump will be charged with a criminal offense. Even with all its amendments, the probable cause affidavit released today by the judge in Florida makes three key points clear to me:
(1) Trump had unauthorized possession of national defense information, specifically properly marked classified documents.
(2) The US government notified him that he was not allowed to keep these documents at Mar-a-Lago.
(3) He continued to keep the documents in his possession (and allegedly took efforts to hide them in various places throughout the property) until the FBI finally executed a search warrant earlier this month.
Read the revised Mar-a-Lago affidavit that the feds just released
That’s the ball game, folks. Absent some unforeseen change in factual or legal circumstances, I believe there is little left for the Justice Department to do but decide whether to wait until after the midterms to formally seek a grand jury indictment.
The harshest irony for Trump is that it never had to be this way.
Put aside that in the chaos that followed his election loss, Trump’s team never undertook the normal process of properly classifying and archiving his presidential records in coordination with the National Archives and Records Administration (NARA). Set aside that the properly labeled classified files were sent to Mar-a-Lago and sat there for months until he started handing things over to NARA in late 2021.
If he had fully cooperated at that point, he was coming back all of the records at NARA last year, this likely never would have become a criminal matter. The DOJ would have refused to take any action, despite the existence of the classified files, and it would have been a “no harm, no foul” situation. Another little story in the saga of Trump incompetence.
But Trump just couldn’t bring himself to play by the rules. He turned 15 boxes last January but didn’t turn over all the records. Political operatives from conservative organizations began whispering in his ear that he had a legal precedent for refusing to turn over the classified files to NARA (he didn’t). His lawyers surprisingly wrote a rather condescending letter to the Justice Department in May 2022, essentially arguing that even if classified files still existed at Mar-a-Lago, the FBI lacked the authority to take any criminal action against Trump , given his previous capacity as chairman. Then, in June 2022, after the FBI served a subpoena to retrieve more records at Mar-a-Lago, two Trump lawyers wrote (and one signed) an affidavit assuring the government that there were no more classified records at the property.
We now know that this statement was not true. The FBI found several more classified files, including some marked Top Secret/Sensitive Compartment Information (TS/SCI) during the investigation this month, not just in the warehouse with the other file boxes. They found discs located in various parts of Mar-a-Lago.
Of course, there are various arguments as to why a prosecution might not succeed in this situation.
There is the claim by Trump and his allies that he declassified the documents, either through a “standing order” or a more specific verbal action. No evidence has been produced to support this claim, and there is certainly no indication that the registration marks themselves were ever revised to reflect the declassification. Trump’s lawyers in May certainly did not provide such evidence in their letter to the Justice Department, and they likewise did not provide any evidence in their “motion” filed earlier this week in Florida district court to seek a Special Teacher.
And that’s before we even consider whether classification status would matter for a prosecution under the Espionage Act, which requires only that the information be related to national defense.
Trump’s coup attempt will always be a much worse crime than stealing documents
There is also the issue of selective political prosecution and alleged bad faith by the government in its decision to pursue the case. This is something that has been reported ad nauseum by Trump allies on cable news and briefly referred to the “motion” filed earlier this week in court. The lack of these arguments is something beyond rank speculation. That won’t fly in court. Just ask Sidney Powell how well trying to go to court the way you argue on cable news works. Hint: it’s not good.
Overall, this case must and in my opinion I will results in a lawsuit. To be sure, an indictment does not equal a conviction. Trump is still presumed innocent until proven guilty. There are unknown variables like whether the prosecution will take place in Florida or D.C. We don’t know what evidence Trump might have to support his impeachment claim. And we don’t know what the courts would say about his various arguments.
Prepare the popcorn by all means.
Bradley P. Moss is a partner and national security attorney at the Washington, DC law office of Mark S. Zaid, PC You can find him on Twitter at @BradMossEsq.
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