In one sense, it was breathtaking: the first ever indictment of a former president by the Department of Justice he once oversaw — and therefore the most important federal charge in U.S. history.
In another, it was expected. Once Donald Trump had received a formal target letter from the department, his fate was effectively sealed.
But that was only the latest in a series of recent signs that charges were inevitable. The months and years of questions about whether the Biden administration should or would indict the 45th and would-be next president — and whether the department would stay its hand for politics, the good of the republic or some other reason — were settled when Attorney General Merrick Garland appointed Jack Smith special counsel.
From that point on, the investigation of the former president’s retention of classified documents has followed the well-worn path that the federal government would tread for any defendant accused of behavior anywhere close to as brazen as Trump’s over the last two years. Smith pursued the case as he would have any other, and that led ineluctably to this week’s indictment.
Almost as unavoidably, it will also lead to the department urging a court to impose significant prison time on the former president if he is convicted. Trump’s last chance to try to bargain for less grave charges came and went in his lawyers’ last meeting with Justice officials on Monday. Now he is in the unenviable position of any other defendant charged with serious crimes.
The relocation of the unprecedented case from Washington, D.C., to Florida was less expected but likely to make the case that much stronger. Although it may sound like a procedural detail, a defendant has a constitutionally guaranteed right to be tried where a crime was allegedly committed. So a venue mistake could result in consequences as serious as a case being thrown out with no opportunity for retrial.
So the department made the strategic call that the case should proceed in the Southern District of Florida, which includes Trump’s Mar-a-Lago estate and the scene of his allegedly illegal record retention. And though we learned only this week of much of the activity there, it appears as if a grand jury has been sitting in Florida for several weeks. That’s more than long enough for it to absorb previous testimony in the case, which the department could provide by briefing jurors on what happened in the capital.
The location also has the effect of underscoring the most damning aspect of the case for Trump. His knowingly taking documents from the White House was almost certainly criminal; his brazen and quintessentially Trumpian refusal to return them, even to the point of lying to the government and involving others in the concealment, was worse.
Indeed, the reported seven-count indictment includes charges of a conspiracy to obstruct justice, according to the New York Times, which means the department will allege that Trump did not act alone. The identity of one or more co-conspirators is one of the most important details we could learn when the indictment is unsealed.
It also apparently includes an unexpected charge of witness tampering, possibly involving Trump’s loyal valet Walt Nauta, who reportedly lied to FBI agents about the presence of sensitive documents, only to fess up during a subsequent questioning. He may turn out to be a cooperating witness.
Another critical point is that the department reportedly included the almost astonishingly serious charge of violating the Espionage Act, compounding the severity of the case and the sense of national betrayal.
The venue does heighten the risk that an ardently pro-Trump juror will simply refuse to convict him on any grounds. But the justice system has already produced another indictment of the ex-president, in New York, and an unfavorable civil verdict in the E. Jean Carroll case.
With the venue issue put to rest, and with courts in the Florida district known for moving fairly quickly, a trial is likely to unfold sooner. It’s even possible that Trump will be convicted by a federal jury before the 2024 election, for which he remains the overwhelmingly favored front-runner for the Republican nomination, though his appeals would probably continue.
The Department of Justice has shown the necessary steeliness and dedication to make history in undertaking this prosecution of a former president. And with Smith still investigating Trump’s even more outrageous misconduct on and before Jan. 6, 2021, this first such prosecution may well not be the last.
Starting as soon as next week, meanwhile, Smith’s deputies will take their places at the table near the jury box and announce their appearance on behalf of the people in United States vs. Trump. Whatever else happens in the coming months, it’s a proud moment and a banner achievement for the rule of law in this country.
____
ABOUT THE WRITER
Harry Litman is the host of the “Talking Feds” podcast. @harrylitman