Breaking down the latest Donald Trump indictment
Commentary on the indictment of former President Donald Trump has focused on the top-secret classification of many of the documents involved.
None of the laws specifically invoked in the indictment, however, require, or even mention, that documents be classified as top secret, or even confidential.
Nevertheless, the indictment includes what is practically a primer on those classification categories, emphasizing the harm that can potentially come to the United States from their release to unauthorized persons.
The indictment also includes quotations from Trump as a candidate and then as president, about the need to treat confidential material with great care. Trump said so when criticizing former Secretary of State Hilary Clinton's use of a nongovernment cellphone and wiping her private server clean.
The decision to include this material has nothing to do with the law. Rather, the inclusions were for public consumption to anticipate the argument by Trump's defenders that the papers were not really all that important. The special counsel only has to prove that the documents related “to the national defense” and were willfully retained by someone not authorized to possess them.
All the rest was to suggest something close to espionage, as Trump media critics have already stated.
This entire count could have been omitted. The other statutes that were pled in the indictment deal with Trump having willfully concealed information from the FBI — which applies so long as the information was relevant to the FBI's legitimate functions, whether the information was classified top secret or not, or related to national defense or not.
The first count of the indictment, the one everyone will read first, brings national security front and center into the case. That is for use in a court — but not a trial court, rather, the court of public opinion.
The prosecutor's strategy is also clear in the decision to indict Waltine Nauta along with Trump. Nauta was the Navy serviceman who served as a valet to President Trump in the White House. After 2020, Nauta left the Navy and became a private employee of Trump. The indictment refers to Nauta as Trump's “body man.” Nauta is mentioned in every step of the case.
The indictment states President Trump directed Nauta to pack up boxes from the White House, including material to which Trump was not entitled. Nauta followed President Trump's orders to hide documents from Trump's own attorneys and from the FBI. Nauta then lied to the FBI about where the documents had been kept — all according to the indictment.
There is only one reason for indicting a “body man,” instead of just indicting the man who gave orders to the body man: to frighten the body man into collaborating with the prosecution. If that happens, the government will have its star witness. From Watergate to President Clinton's perjury, the rule has become almost talismanic that it's not the offense, but the cover-up, that trips up the mighty. With Waltine Nauta as their witness, the government would have its cover-up case proved.
In an indictment so carefully crafted, one omission must also be inferred as intentional. When FBI agents searched Mara-Lago on Aug. 8 last year, the search warrant relied on a statute that does not reappear in the indictment just issued. That statute, section 2071 of title 18, carries an automatic disqualification for anyone convicted from serving in federal office again.
That result would take effect the moment a jury convicts. That's not the consequence, however, of any of the laws actually pled in this indictment. The voters can take into account any conviction or acquittal, and the appeals will last long past the primaries and November election. However, there will not be an automatic disqualification. The special counsel must have considered this and decided that we, not 12 citizens of Palm Beach, should decide who our president will be.
Tom Campbell is a professor of law and of economics at Chapman University. He served five terms in Congress, including on the House Judiciary Committee. He left the Republican Party upon the nomination of President Trump in 2016 and is now forming a new political party in California, the Common Sense Party.