The Charges against Donald Trump

  • June 14, 2023
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Walter Olson

The indictment itself is clear, well organized, and not too long. You should read the whole thing if you aim to be informed about this important moment in American history.

A few observations:

Trump didn’t get charged with illegal possession over the 197 documents he gave back to the Archives voluntarily. That matches up with how Biden and Pence were treated after retaining some documents. Give back when asked = no rap, at least for officials at this level. Trump is facing charges because he chose to lie to the feds and hide documents.
A substantial portion of the indictment lays out the reasons to think that lying to federal law enforcers and hiding documents was Trump’s purposeful course of action, not the result of some sort of carelessness or inattention.
During his service as President, Trump was shockingly careless and self‐​centered in his handling of national security secrets. But his legal right to act that way ended when his term in office did.
There are some pretty squirrely claims making the rounds about what the Presidential Records Act does and does not require. This explanation from the National Archives helps clarify matters. In brief: presidents are legally required to turn over all documents relating to their work in office, whether or not related to national security; the obligation attaches at the time their term ends; there isn’t any sort of further negotiation period. More from Andrew McCarthy and Ed Whelan.
Trump himself has not consistently sought to hold with a theory embraced by some of his followers that a President can declassify documents with legal effect by winking at them or just thinking a mischievous thought, whether or not he then initiates any formal process or documentation to notify others in government. At any rate, the issue is largely irrelevant to the various charges in the indictment. The counts on willful retention of national security information do not require that the information be classified; the obstruction and concealment counts do not either (the grand jury had asked for all documents with classification markings, whatever their current classification status).
Another substantial portion of the indictment lays out the reasons to think that even after federal agents had confronted him with the issue of illegally retained national security documents, Trump behaved in ways that compromised the security of the documents that he retained, some of which were of high seriousness for national security and bore very highly restricted secrecy markings. His storage arrangements were extraordinarily shoddy and included box storage in rooms frequented by random persons including a bathroom, shower, ballroom, storeroom, office, and bedroom. According to testimony and an audiotape, he showed sensitive security documents to civilian visitors.
Trump’s former position required him to know, and the statements listed on page 9 of the indictment prove that he did know, the importance to national security of keeping secure the sorts of information at stake here. In addition, notes Oona Hathaway of Yale Law, Trump’s “own Justice Department vigorously enforced the Espionage Act, sending people to prison for much less than the actions described in the indictment of Mr. Trump.”

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