The Justice Department's recent response to a request by Donald Trump’s legal team for the appointment of a “special master” to review classified documents discovered during a search of the former president’s Florida resort and residence set off a flurry of speculation about whether an indictment would be forthcoming.
Since America's founding, no U.S. president has faced a criminal indictment, but the details revealed in Tuesday's DOJ court filing — including a photo of top-secret documents arrayed on the floor of Trump's office — showed he continued to possess such documents at Mar-a-Lago despite months of negotiations with the National Archives and a signed assurance from his lawyers that all the sensitive documents had been returned.
While Trump and his lawyers initially stated that he had declassified all the documents he brought with him from the White House, their court response to the DOJ’s filing gave no mention of that claim.
Based on the filing, some conservative observers said an indictment appeared likely.
“Even a cursory review of the redacted version of the affidavit submitted in support of the government’s application for a search warrant at the home of former President reveals that he will soon be indicted by a federal grand jury for three crimes: Removing and concealing national defense information (NDI), giving NDI to those not legally entitled to possess it, and obstruction of justice by failing to return NDI to those who are legally entitled to retrieve it,” Andrew Napolitano, Fox News legal analyst and former Superior Court judge, wrote in an opinion piece for the Washington Times.
Writing at National Review, conservative author Andrew McCarthy agreed that the filing made clear that a Trump indictment is a strong possibility.
“Former president Donald Trump is facing the very serious prospect of being indicted for obstruction of justice and causing false statements to be made to the government,” McCarthy wrote. “That is the upshot of a court submission filed by the Justice Department on Tuesday night, in response to the Trump camp’s belated motion for the appointment of a special master to review materials seized three weeks ago from the former president’s Mar-a-Lago estate.”
On Sunday, days before the DOJ laid out its case against appointing a special master, Sen. Lindsey Graham, R-S.C., made headlines when he predicted what would happen if Trump were to be indicted.
“If they try to prosecute President Trump for mishandling classified information after Hillary Clinton set up a server in her basement, there literally will be riots in the street. I worry about our country,” he said.
Former Harvard law professor Alan Dershowitz picked up on what Trump and his supporters see as a potential double standard regarding former Secretary of State Clinton’s handling of classified material, and, prior to the DOJ filing on Tuesday, confidently predicted that Trump would not face indictment over the documents.
“There is enough evidence here to indict Trump, but Trump will not be indicted, in my view, because the evidence doesn’t pass what I call the Nixon-Clinton standards. The Nixon standard is, a case has to be so overwhelmingly strong that even Republicans support it, and the [Hillary] Clinton standard is, why is this case more serious than Clinton’s case where there wasn’t the criminal prosecution?” Dershowitz said Friday on Fox News.
“So I think the three points are: There was probable cause, they shouldn’t have sought a warrant, there is enough for an indictment but there will not be an indictment and should not be an indictment based on what we've seen to now. Maybe once we see it unredacted, we’ll have to change our minds.”
Bloomberg reported Wednesday that Attorney General Merrick Garland’s decision on whether to indict Trump will likely wait until after the midterm elections due to a department policy that prohibits prosecutors from “taking investigative steps or filing charges for the purpose of affecting an election or helping a candidate or party, traditionally 60 days before an election,” Bloomberg journalist Chris Strohm wrote.
Of course, that policy did not prevent former FBI Director James Comey from reopening an investigation into Clinton’s use of a private computer server only days prior to the 2016 election.
Given the historical significance of a possible criminal indictment of the former president, the Justice Department will not make its decision lightly, most legal analysts agree. That’s especially true given that the DOJ will seek to keep the highly classified material at the heart of the case from public view. As Politico's senior legal affairs reporter Josh Gerstein put it, charging Trump would result in likely “the highest-profile criminal case in American history,” and one in which a not-guilty verdict would have long-lasting implications for the DOJ while a conviction might result in the unrest Graham predicted.
A Quinnipiac poll released Wednesday found that 50% of Americans believe Trump should face criminal charges over his handling of the classified documents, while 41% do not.
While Trump and his supporters see a plot by the Biden administration to damage his political prospects in 2024, others say his public statements are not helping his case. On Wednesday, for instance, Trump posted a message to Truth Social, his struggling social media platform, that appeared to confirm that he knew he had been in possession of the classified documents in question.
"There seems to be confusion as to the ‘picture’ where documents were sloppily thrown on the floor and then released photographically for the world to see, as if that’s what the FBI found when they broke into my home,” Trump wrote. “Wrong! They took them out of cartons and spread them around on the carpet, making it look like a big ‘find’ for them. They dropped them, not me — Very deceiving ... And remember, we could have NO representative, including lawyers, present during the Raid. They were told to wait outside.”
CNN legal analyst Norm Eisen said that message involved “really the last key issue that will determine whether or not Donald Trump is charged ... his personal knowledge that these classified documents were where they were."
"Well, guess what," Eisen continued, "by admitting that he knew they were in the cartons, he just provided the government with more proof that, yes, he was involved in this.”
The last piece of the puzzle re: whether to charge Trump is proving his personal knowledge & intent
Well his ramblings on Truth Social just provided evidence that he knew where the classified docs from DOJ's photo were located
I joined @CNN @NewDay w/ @JohnBerman to discuss pic.twitter.com/oWprtepUho
— Norm Eisen (@NormEisen) September 1, 2022
The appearance that the Justice Department may be preparing to indict Trump is not the same, however, as the announcement of an actual indictment.
“It seems to me that it’s moving in the direction of warranting criminal charges,” David Laufman, former chief of the counterespionage section at the Justice Department’s National Security Division, told Politico. “I think [Trump] has significant criminal exposure. Whether they ultimately decide to exercise prosecutorial discretion in favor of prosecuting him is another question.”