Donald Trump has been indicted by federal prosecutors in connection with his removal of documents from the White House, the former president announced on his social-media site tonight. He said that he has been summoned to appear on Tuesday at a U.S. courthouse in Miami. Several outlets reported that he faces seven counts, but more information was not immediately available.
“I never thought it possible that such a thing could happen to a former President of the United States,” Trump wrote in a post, adding, “I AM AN INNOCENT MAN!”
In fact, the indictment is, like so many of the signal moments of his presidency, both eminently foreseeable and utterly astonishing. If it never seemed possible that a former president would face such charges, that’s mostly because it never seemed possible that a president would abscond with a large number of documents and then defy a subpoena to return them. Trump’s shock also reflects his feeling that he was, or ought to be, immune to consequences for his actions and not subject to the same rule of law as other citizens.
This indictment began looking likely in August 2022, when the FBI conducted a surprise search at Mar-a-Lago. Each new revelation since then has pointed toward charges. The federal government repeatedly asked Trump to return the documents; he refused, claiming that some belonged to him and that he had already returned those that didn’t. Some of the documents are believed to be extremely sensitive to national security. By this spring, I wrote, the big question was when and not if.
The indictment does not break the taboo of indicting a former president—that happened in April, when Manhattan District Attorney Alvin Bragg charged Trump with 34 counts of falsifying business records. But the case in Florida, apparently brought by Justice Department Special Counsel Jack Smith, represents the first federal charges against a former president. And it poses a far greater danger to Trump than the New York case, for several reasons.
The public evidence in both cases suggests that the Florida case is much stronger. The Manhattan prosecution is based on a tenuous legal theory. As I have previously reported, legal experts and former prosecutors see the legal questions in this case to be much simpler. Many former officials have been prosecuted for mishandling official records and classified records. Trump has tried to draw a parallel to President Joe Biden and former Vice President Mike Pence, both of whom also took classified documents, but neither of those cases includes the appearance of great efforts to obstruct the government and refuse to return papers. (Trump also faces potential legal troubles in Atlanta, where a local prosecutor is investigating efforts to subvert the 2020 election in Georgia.)
If the legal question for federal prosecutors is straightforward, the political calculations are much more complex. As if charging a former president were not explosive enough, Trump is the leading candidate for the Republican nomination in next year’s presidential election.
But Trump faces his own political complications. Voters have proved fairly willing to forgive politicians’ personal failings, especially in recent decades and especially when it comes to Trump. (The Manhattan case, for example, stems from hush-money payments to an adult-film actor who has claimed a sexual liaison.) But the removal of the documents is an act that stems directly from his role as president, and it implicates the very security of the country. The documents removed are reported to have included detailed information about Iran’s missile program and intelligence programs in China—the sorts of things that are kept under tight wraps in government facilities, but were reportedly stuffed haphazardly in storage areas at Mar-a-Lago.
Trump was also able to survive his (also unprecedented) two impeachments, both because he could write them off as political processes and because he was ultimately accountable to politicians, including many aligned with him politically or afraid of his backers. In this case, Trump will have to come before a jury of his peers or a federal judge.
In Trump’s long career in and out of the courts, he has not yet faced a legal peril this serious, but just how serious it is will not be clear until the charges emerge. Prosecutors could use several laws to bring those charges, with different standards and different penalties.
His defense will face difficulties, including the huge amounts of evidence obtained in the raid, as well as a ruling that one of his lawyers had to turn over information that otherwise would have been shielded by attorney-client privilege. Trump will likely try to spin the charges as concerning “process crimes,” as though those are not just crimes, and deflect from the papers themselves. He has also claimed that he declassified all of the papers at the end of his presidency, but he produced no evidence for that, and his lawyers have avoided making the claim in filings. Reports last week said that prosecutors have a recording in which he seems to acknowledge that he cannot show a document to visitors because it is classified. And if he’s charged for refusing to return the documents, their classification status will not matter.
Trump is certain to make his strongest and most impassioned defense in the court of public opinion, where he will present himself as the victim of a politicized witch hunt. He previewed that argument in a video posted tonight. That’s a familiar refrain, and one that has never borne much weight, but it has also bound his strongest supporters more closely to him—in fact, as his legal troubles have escalated, so has his polling in the Republican primary. Yet the overall population has always been, and remains, skeptical of him.
Court cases take time, and Trump’s attorneys will make every effort to draw this one out, trying to push a trial past the point of the 2024 election. If Trump wins, he would likely have the power to shut down any probe and perhaps even to pardon himself. That means that the court of public opinion may also render its verdict sooner than any federal court, and the jury will be American voters.
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