Donald Trump is in his most serious legal trouble yet

IT IS NOT every day that a former American president faces federal indictment. Donald Trump became the first to earn this ignominious distinction on June 9th when the Department of Justice (DoJ) unveiled an array of federal charges, the culmination of a 16-month investigation into the removal of classified documents from the White House after Mr Trump left Washington, DC, in January 2021.

The details of the indictment were unsealed in a 49-page document. The allegations are stunning. Mr Trump, prosecutors say, stored sensitive documents—including those concerning matters of national security—in boxes in a remarkably haphazard and irresponsible way. They were found strewn in various corners of Mar-a-Lago, the former president’s Florida estate, including a shower stall, a bathroom, an office, a bedroom and—most ostentatiously—the stage of a ballroom “in which events and gatherings took place”. Mr Trump’s lawyers had maintained the documents were all held in a storage room.

The documents were seized last August, when investigators from the FBI executed a search warrant at Mar-a-Lago to retrieve highly classified documents Mr Trump had not returned, despite a series of requests. The extraordinary action suggests that Mr Trump’s hubris may be to blame for his new headache. An important defence Mr Trump offered at the time—that he had the power, as president, to declassify the documents by fiat—is at odds with an audio recording from 2021, obtained by prosecutors, in which he seems to acknowledge that some files in his hands were still classified. “This totally wins my case, you know… Except it is like, highly confidential… Secret. This is secret information,” he told two writers working on a book about an aide. Mr Trump seemed to understand the situation clearly: “As president”, he said, “I could have declassified… Now I can’t.”

The DoJ has long-standing guidance that prosecutors avoid investigating or charging candidates for public office in the run-up to an election, lest that undermine public confidence in the rule of law. In 2022 Merrick Garland, the attorney-general, told his department to be “particularly sensitive to safeguarding the department’s reputation for fairness, neutrality and non-partisanship”. So he appointed an independent special counsel, Jack Smith, to oversee two investigations involving Mr Trump: his handling of classified documents; and his role in the violence at the Capitol on January 6th 2021.

Failing to secure a conviction would be a serious embarrassment for Mr Smith and the department. Mr Trump and his supporters claim that the indictment is just the latest iteration of a “witch-hunt” undertaken by a weaponised deep state. Sowing distrust, he is already pointing out that classified documents have been removed from the homes of President Joe Biden and Mike Pence, his former vice-president and now a rival in the Republican primary.

The charges outlined in the indictment, all of which carry significant prison sentences, include keeping classified documents without authorisation and possibly sharing them with others; conspiring to obstruct justice by resisting requests to return documents; putting pressure on individuals to refuse to testify against him or to make things up; concealing documents and making false statements. In all, Mr Smith is bringing 37 counts against Mr Trump under federal criminal laws including the Espionage Act, a law enacted in 1917 during the first world war.

The scene in Miami, where Mr Trump will be arraigned in court on June 13th, will be familiar to those who watched him appear in court in New York less than three months ago on state charges related to his alleged hush-money payments to Stormy Daniels, an adult-film actress who says she had a tryst with him. The former president will again plead not guilty, be granted bail and be released pending a trial date many months in the future. He will be the first person in American history to have a criminal proceeding before a federal judge, Aileen Cannon, whom he appointed to the bench.

Despite the extraordinary spectacle of a former president being dragged into a federal courtroom, the political consequences are rather predictable. This is, after all, neither the first time Mr Trump has faced legal inquiry, nor the first time that he has been indicted. Just as before, the Republican Party appears to be uniting to defend him even as some are vying with him for the presidential nomination in 2024. Ron DeSantis, the Florida governor and his most serious rival, felt compelled to come to his defence. “The weaponisation of federal law enforcement represents a mortal threat to a free society,” he tweeted. “Today, what we see is a justice system where the scales are weighted,” said Tim Scott, a senator from South Carolina, who is also seeking the nomination. (Both candidates made these remarks before they knew what the indictment said.)

Eight years of Trumpism has warped the Republican Party to such an extent that an onslaught of indictments and legal proceedings may help the former president secure the nomination, rather than hurt him. The idea that the president may have broken the law and might fairly be prosecuted for it is heretical; the price for thinking it aloud still appears to be excommunication. If the party was willing to forgive him for his actions that led to the attack on the Capitol, it is hard to imagine what could break the allegiance of his supporters—probably not a finding of civil liability for sexual abuse, nor alleged financial crimes over hush-money payments.

Retaining highly classified documents and misleading federal agents who wished to secure them is a new level of wrongdoing—and may put Mr Trump in greater legal jeopardy than the other cases—but the former president’s base may be unmoved by any accusations against their political hero.

Local prosecutors in Georgia may add conspiring to subvert the election process to Mr Trump’s litany of charges. Trials and court dates will recur throughout the presidential primary, eliciting the sympathy of voters and forcing opponents in his own party to spend less time attacking him, and more condemning the alleged persecution. The criminal trial in New York begins on March 25th 2024, meaning that it will overshadow the critical first two months of the primary season.

There can be little doubt, however, that Mr Trump’s newest and most serious legal exposure imperils his chances of recapturing the White House. Although the slow speed of American courts means that it is extremely unlikely that Mr Trump would be in a prison cell before November 2024, the looming indictments that aided him in the primary would be liabilities in a general-election rematch against Mr Biden. Moderate voters already alienated by Mr Trump’s conduct in office (and the Republican campaign to restrict abortion) would have little reason to see him as the safer and saner candidate when he is pledging to purge the deep state of his persecutors. ■

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