Some observations on special counsel Jack Smith’s indictment of former President Donald Trump:
No. 1: The indictment is valid. It shows Trump, in voluntarily recorded conversation, revealing to onlookers the contents of government documents classified top secret and, in exchanges with his attorneys, refusing to turn over this material and encouraging them and an aide to conceal it from the government.
The contention that these were just “personal records,” like the transcripts of interviews of Bill Clinton by historian Taylor Branch were ruled to be, seems unpersuasive.
Nor can it be argued in this case that the indictment can be dismissed as the result of overclassification under the overbroad Espionage Act of 1917. The indictment makes it plain that the material in question was justifiably classified as secret and, in at least 30 cases, top secret.
No. 2: That said, the indictment charges Trump with multiple counts of what is essentially the same offense. This aids headline writers who want to write that the former president, who turned 77 on Wednesday, faces hundreds of years (310, to be exact) of imprisonment, but is at odds with Justice Department guidelines. Smith seems to be needlessly piling on here. And do indictments usually include photographs of evidence, like the widely circulated view of the boxes in a Mar-a-Lago bathroom?
In addition, the indictment includes multiple quotations of Trump’s assertions that classified material should remain secret. Perhaps their inclusion can be justified as showing intent — that Trump knew that what he was doing was wrong. But intent is not required by the Espionage Act, and the material recited looks like the sort of thing you see in negative political ads.
No. 3: Does the indictment’s insistence that Trump acted willfully and with the knowledge that he was breaking the law represent an attempt to distinguish his retention of government records from those of Joe Biden or Hillary Clinton? Conservative career prosecutor Andrew McCarthy raises that possibility, but notes that the Espionage Act punishes reckless disregard, as well as deliberate flouting, of the law.
No. 4: This brings up the troubling question of a double standard. In 2016, a Democratic administration declined to indict a poll-leading Democratic candidate for president who willfully retained and caused the destruction of government documents in her personal email system, while in 2023 a Democratic administration has indicted a poll-leading Republican candidate for president.
Arguments that Clinton’s offenses were not as serious as Trump’s are strong enough to persuade some large number of Americans that the cases are different, but arguments that they were similar — or worse — are strong enough to persuade many others.
Also, the apparent inaction, so far, of the special counsel investigating the classified documents found in Joe Biden’s former office in Washington and garage in Delaware will raise suspicions among many Americans that a double standard is operative. Longstanding Justice Department protocol barring indictment of incumbent presidents may not assuage their doubts.
No. 5: In bringing this indictment, Jack Smith made the familiar and often dispositive argument that no one should be above the law. And, as noted, on the law the case for indictment is strong.
But the decision to indict a former president and current presidential candidate is inevitably political. It has never been done, despite harsh partisan conflict, before in the 235 years since the United States Constitution was ratified. Not even when former President John Tyler supported the secession of Virginia from the Union and took his seat in the Confederate Congress.
A political decision should be made by an elected official, the president of the United States, or at least a Senate-confirmed appointee like the attorney general. Joe Biden and Merrick Garland have appeared to step aside from this responsibility.
But they will share the responsibility with Donald Trump if, as in other countries, post-presidential indictments become standard operating procedure. The pendency of an investigation of the current president should be a warning of that possibility.
No. 6: In 2016, Barack Obama and Attorney General Loretta Lynch similarly tried to evade responsibility for such a decision. After Lynch met with Bill Clinton at the private aviation runway of Phoenix’s airport on June 29, 2016, she said she would take no action on the Hillary Clinton emails investigation, and three business days later, on July 5, a decision not to prosecute was announced, astonishingly, by FBI Director James Comey.
“No reasonable prosecutor,” Comey stated that day, “would bring such a case.” But last week Jack Smith did so, at least in the minds of many Americans.
Is the Biden administration trying to promote Donald Trump as the Republican nominee? Unclear. But the irresponsibility of the conduct of the 45th president and the self-proclaimed irresponsibility of the 46th has put our republic in a place it has never occupied before. And with no entirely satisfactory way out.
Michael Barone is a senior political analyst for the Washington Examiner, resident fellow at the American Enterprise Institute and longtime co-author of The Almanac of American Politics.
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