Unsealed on Friday, the second criminal indictment of former president Trump charges him with 37 counts of criminal conduct in unlawfully retaining classified documents, obstructing justice, and making false statements to a grand jury.
It also charges him with disclosing classified information — defense information in the words of the Espionage Act — to people unauthorized to obtain that information.
(Waltine Nauta, a member of the U.S. Navy, was stationed at the Trump White House and then at Mar-a-Lago as a sort of valet for Trump. He is also charged in the 37 counts against Trump and one charge against him alone.)
The first indictment against Trump, brought by New York City District Attorney Alvin Bragg, is almost laughable. The second indictment, brought by special counsel Jack Smith, is an entirely serious matter. The charges brought against Trump could well result in his conviction on one or more counts or in a plea deal in which he admits some level of guilt.
This is, as Trump has said, interference in his election plan. Yes, it is a decision that had to be made by both President Biden and Attorney General Garland, making it a political indictment to a considerable degree. And, yes, the indictment reads as if several of Trump’s attorneys have violated the attorney-client privilege by spilling their guts to the prosecutors and grand jury.
But what stands out most from the indictment seems to show that Trump is a loose cannon on deck in a storm. His respect for the need to keep America’s secret information secret has been disproven by his own statements.
For example, in a September 2021 interview with Sean Hannity, Trump said in regard to a president’s power to declassify documents or information, “There doesn’t have to be a process, as I understand it. You’re the president of the United States, you can declassify just by saying it’s declassified, even by thinking about it.”
That is, simply, arrogant nonsense. And then there’s his bad judgment.
Paragraphs 33-35 of the indictment set out two incidents where Trump apparently disclosed secret or top-secret information to people who had no security clearances. The first, on July 21, 2021, Trump gave an interview to an author for a forthcoming book, which the author evidently recorded. The book is probably about Trump’s Chairman of the Joint Chiefs of Staff, Gen. Mark Milley, and the reference to “Country A” is probably to Iran. The indictment says:
… Before the interview, the media had published reports that, at the end of Trump’s term as president, a senior military official (the “Senior Military Official”) reportedly feared that Trump might order an attack on Country A and the Senior Military Official advised Trump against doing so.
Upon greeting the writer, publisher and two staff members, Trump stated, “Look what I found, this was [the Senior Military Official’s] plan of attack, read it and just show…it’s interesting.” Later in the interview, Trump engaged in the following exchange:
TRUMP: Well with the [Senior Military Official] – uh, let me see that, I’ll show you an example. He said that I wanted to attack [Country A]. Isn’t that amazing? I have a big pile of papers, this thing just came up. Look. This was him. They presented me this — this is off the record, but — they presented me this. It was him. This was the Defense Department and him.
WRITER: Wow.
TRUMP: We looked at some. This was him. This wasn’t done by me, this was him. All sorts of stuff — pages long, look.
STAFFER: Mm.
TRUMP: Wait a minute. Let’s see here. STAFFER: [Laughter] Yeah.
TRUMP: I just found, isn’t that amazing? This totally wins the case, you know.
STAFFER: Mm-hm.
TRUMP: Except it is like, highly confidential.
STAFFER: Yeah. [Laughter]
TRUMP: By the way. Isn’t that incredible?
STAFFER: Yeah.
TRUMP: I was just thinking, because we were talking about it. And you know, he said, “he wanted to attack [Country A] and what…”
STAFFER: You did.
TRUMP: This was done by the military and given to me. Uh, I think we can probably, right?
STAFFER: I don’t know, we’ll, we’ll have to see. Yeah, we’ll try to —
TRUMP: Declassify it.
STAFFER: — figure out a — yeah.
TRUMP: See as president I could have declassified it.
STAFFER: Yeah. [Laughter]
TRUMP: Now I can’t, you know, but this is still a secret.
STAFFER: Yeah. [Laughter] Now we have a problem.
TRUMP: Isn’t that interesting?
At the time of this exchange, the writer, publisher, and Trump’s two staff members did not have security clearances or any need-to-know any classified information about a plan of attack on Country A.
Trump thus admitted to having a secret (probably top secret) document and disclosing it to people who had no authorization to see it.
He’ll have a hell of a time trying to beat that rap.
The second incident, alleged in paragraph 35, recounts a meeting between Trump and a representative of his political action committee. According to the indictment:
Trump commented that an ongoing military operation in Country B was not going well. Trump showed the PAC representative a classified map of Country B and told the PAC representative that he should not be showing the map to the PAC representative and not to get too close. The PAC representative did not have a security clearance or any need-to-know classified information about the military operation.
Again, he allegedly admitted possession of a classified document and showed it to someone who had no authorization to see it. The Justice Department can prove this easily, through testimony showing the map was classified and the PAC representative’s testimony that he was shown it.
As others have written, Trump is his own worst enemy.
As a Wall Street Journal editorial points out, the indictment makes no mention of the Presidential Records Act, which entitles a former president to have access to records, both classified and unclassified. Permission to possess classified information is supposed to be negotiated with the U.S. Archivist.
The question — aside from the disclosures the indictment alleges — should come down to whether Trump stored the documents in question properly and had negotiated his possession with the Archivist. The indictment sets out extensive allegations that — like Biden’s classified documents and Pence’s — Trump took no care in storing the classified documents.
Those facts don’t exonerate Trump. Nor does the fact that Hillary Clinton should have been sent to prison for a very long time for transmitting highly classified information over her unsecured email system.
The 37 counts in the indictment each carry the penalty of between ten and twenty years in prison.
It’s unlikely that Trump will ever serve a day in prison. Nevertheless, whatever time he is forced to spend on his defenses to both indictments will interfere with his ability to campaign for another term as president.
As Trump’s former attorney general Bill Barr told CBS, “This would have gone nowhere had the president just returned the documents. But he jerked them around for a year and a half.”
And that’s Trump. He cannot resist the temptation to refuse to cooperate with anyone who isn’t a loyal supporter or the temptation to follow his own rules regardless of the consequences. We deserve a Republican presidential candidate with better character.
