For the first time in the history of the US, a former President was formally accused of a Federal crime in an indictment presented today, June 13, 2023, in a Florida courthouse.
The US Government classifies about 90 million documents a year, with different levels of confidentiality, the top level covering only a small portion of the total is classified “top secret”. The Government takes quite seriously what happens to classified documents when a government official leaves office, particularly a “Top Secret” document that if leaked, has the potential to cause “exceptionally grave damage” to national security. For example, in the recent past the majority of officials taken to court for having taken classified documents received serious prison terms. It is not unusual for the government to discover that a senior official has kept a classified document, at which time the Department of Justice will advise the person that they are suspected of having kept a classified document, the person invariably cooperates to find the document and immediately returns it to Government, and no further action is undertaken. This is what happened with recently discovered classified documents taken by Joe Biden and Mike Pence when they are Vice-President.
When Donald Trump left office at the end of 2020, he took a large quantity of documents belonging to the government, many of them classified as “Top Secret”. The Justice Department discovered this, he was asked to return them and he in fact voluntarily returned some documents, which led to no further action. However, according to the 38 accusations in the indictment voted on by a 23-person Grand Jury and presented to Trump last week, Trump repeatedly refused to return many other highly sensitive documents including 31 “Top Secret” ones, took no care to protect them from being seen by unauthorized persons, lied to the Justice Department and to his own lawyers about what he had, and participated in an active conspiracy to prevent the Government from recovering them. Some of the documents held some of the country’s deepest military secrets, including: “military contingency planning of the United States,” “military capabilities of a foreign country and the United States,” “nuclear capabilities of a foreign country,” “nuclear weaponry of the United States,” etc. As Republican Senator Murkowski stated, the charges brought by the Department of Justice are “quite serious and cannot be casually dismissed.”
In response to the indictment, Trump has claimed he is innocent of any wrongdoing. The case will go to trial, in Florida under the control of a randomly selected Trump-appointed judge who has ruled in favor of Trump in an earlier case. Will the case prevent Trump from continuing to run as presidential candidate in Republican primaries? No, it is not illegal for an indicted person to run for office and even if he were found guilty, Trump’s lawyers will almost certainly be able to stretch the appeals process beyond the 2024 election. If he were to be elected president, any effect of the trial would be at a minimum postponed, or more probably annulled. On the other hand, many pollsters believe Trump’s legal problems will weaken his support among the general public in a presidential election. A recent poll by Quinnipiac University found that 57% of Americans said criminal charges should disqualify Trump from running for president.
Without judging on the details and legal merits of the current indictment, what can we say about the consequences? In the short term:
– Trump has once again totally occupied the media space, leaving little room for his Republican presidential candidate opponents,
– He has also once again successfully positioned himself in the Republican camp as a victim of an unfair deep state, his approval rating among Republican voters is improving and he has been able to raise new funds in the aftermath of the indictment,
– More troubling in my view, he has mobilized the unqualified support from many Republican leaders who accuse the Justice Department of being a corrupt political instrument: “It is unconscionable for a President to indict the leading candidate opposing him,” tweeted House Majority Leader Kevin McCarthy tweeted. “The weaponization of federal law enforcement represents a mortal threat to a free society,” Florida Gov. Ron DeSantis stated. Republican Senator Ted Cruz called the indictment “a political attack from a thoroughly corrupted and weaponized Department of Justice.” “There is no limit to what these people will do to protect their power & destroy those who threaten it, even if it means ripping our country apart,” Sen. Marco Rubio declared. I doubt that the Republican leaders who have accused the Justice Department of corruption really believe what they say, but their words count. I find it particularly disconcerting that anti-institutional paranoia has become mainstream in the Republican Party,
– Two previous Presidents encountered serious legal problems: Richard Nixon and Bill Clinton. Neither of them liked the legal cases against them, but both accepted they had to play by the rules, they did not reject the entire system. It is disconcerting to see Donald Trump, and his many supporters including leaders in the Republican Party, reject the rule of law governing the process itself building up against the former President.
Are these incredibly claims reasonable, is it true that the Justice Department is politically motivated? I don’t think so. The head of the Department of Justice, Attorney General Merrick Garland, was viewed by his peers as a balanced and fair person when he was nominated by Biden to run the Department in 2021. He seemed the right kind of person to “depoliticize” a Justice Department that many felt had become excessively partisan during the Trump Administration, but he has not been able to avoid highly political cases, such as the current one which has led to a federal indictment of an ex-President for the first time in US history. Seeking to minimize the risk of political bias, Garland named an independent prosecutor to oversee the cases against Trump: Jack Smith, an experienced war crimes prosecutor who had served on the International Court of Justice in The Hague. Jack Smith has pursued the investigation that led to a decision by a Grand Jury to indict Trump. No doubt again to prevent accusations of unfair bias, Garland decided to present the case in Republican Florida, rather than Democratic New York. And President Biden has made a point, in vivid contrast to his predecessor, of not commenting or getting involved in any politically sensitive Justice Department cases. I personally believe in the professionalism of the US Justice Department, under Republican as well as Democratic Administrations, including in this case.
American society gives enormous importance to the legal profession and system and generally, the judicial system in the US has stood up well against attacks. For example, Trump and his allies were unable to overturn the results of the 2020 presidential election in large part because their multiple claims of election fraud were massively rejected by numerous court cases, including many decided with judges appointed by Trump. The rule of law is essential to the functioning of American democracy. But will it be able to stand up to the constant attacks by Trump and his supporters, many of whom consider that violence is justified to defend what they consider their political rights? It is not unusual to hear the language of right-wing supporters such as Republican Kari Lake who suggests that attacks against Trump could be met with violence, “We’re at war!”.
If Donald Trump becomes the Republican candidate for President – and this is probable unless Republican leaders turn decisively against him, and at the same time he faces serious judicial problems that may lower his chances of winning the presidential election, and his supporters continue to believe he has a virtually God-given right to regain the presidency, such a situation presents a serious threat to the smooth functioning of US democracy.
2024 is going to be a difficult and dangerous year for the US.