Please explain timing of Trump indictment
From O.J. Simpson’s arrest on June 17, 1994, on charges of murder to his acquittal on Oct. 3, 1995, in what was billed as the “trial of the century,” nearly 16 months elapsed. How many months will pass, from Donald Trump’s arraignment on June 13, before a verdict in what might well be the trial of this century — the unprecedented federal criminal prosecution of a former president? Sixteen months would mean the nation learning Trump’s fate a matter of weeks before Election Day, with the accused very possibly on the 2024 presidential ballot.
The idea that the Justice Department is flirting with that possibility is astonishing. Prosecutors had other options — to charge Trump sooner or delay prosecution until later — but instead have chosen to take this route, two months before the Republican presidential debates begin.
Of course, the courtroom timetable is still uncertain. I consulted several experienced defense attorneys, who have described scenarios ranging from “This is a one-week trial” to “The complexities surrounding classified documents on which the government built its case are vast” and will force delaying the trial until 2025.
Former federal prosecutor Andrew C. McCarthy, who has plenty of experience dealing with classified documents in a criminal trial, is in the 2025 camp. In my recent radio interview with him, McCarthy dealt with some of the initial thorny issues the case raises, including the Trump legal team’s need for security clearances and how the former president can get his claim of having declassified documents into the trial without also testifying.
But maybe the most basic question about the case is one I had, and I’m sure many shared, when the indictment of Trump for allegedly violating the Espionage Act was unveiled: That’s it? In this “espionage,” no documents were given to a third party? None were sold? It’s all about “unlawful retention”?
Maybe I was expecting more because I made the mistake of paying attention to the likes of Joy Behar and Keith Olbermann on the far left. The usual suspects were predicting the worst for Trump, in their tradition of overpromising and underdelivering about his alleged misdeeds, in this case speculating about Trump selling the files to foreign entities. Then again, special counsel Jack Smith raised expectations this spring by subpoenaing the Trump Organization’s overseas dealmaking records going back to 2017. The implication: Trump was selling classified information to foreign powers, or, as the New York Times put it, the subpoena “suggests that Mr. Smith is exploring whether there is any connection between Mr. Trump’s dealmaking abroad and the classified documents he took with him when he left office.” The evidence of that in the indictment: zero.
Has this special counsel, like Robert S. Mueller III before him, in hot pursuit of Trump, jumped the shark? Smith has loaded up lots of criminal counts — 37 of them — and released seemingly damning photos of cardboard boxes stacked at Mar-a-Lago, with the implication that they are full of classified material. But the indictment hinges on just 31 documents — presumably small enough to fit in a single box — and among the containers in the infamous chandeliered-bathroom photo is one with “Bedroom” scribbled on it with a marker, just as millions of Americans would do when moving.
The central issue with this case is whether Trump’s possession of those 31 documents was so dangerous to national security that the former commander in chief must be put into the dock and face a prison sentence of more than 300 years.
Has the Justice Department really thought this through? After the GOP presidential debates begin on Aug. 23, they will occur regularly for months to come. Trump might or might not participate, but he will certainly be campaigning hard. Do prosecutors envision sandwiching court hearings between debates and campaign appearances? Do they foresee hearings while Iowa is caucusing or New Hampshire is holding the first Republican primary? Will the government demand his presence on Super Tuesday?
This possible invasion of the nation’s quadrennial election cycle — of the democratic process — by a group of never-elected lawyers, never even queried by the people’s elected representatives, demands explanation by Attorney General Merrick Garland. Where is he? Garland should be out front, answering questions about the decision to proceed now, and why. After all, the subpoena for the boxes at Mar-a-Lago was issued by a grand jury in May 2022, the search warrant executed in August but the charging not done until now.
At a minimum, Americans have a right to know how the attorney general will ensure that the same standard of prosecutorial discretion used to charge Trump will be applied by the special counsel investigating President Biden’s trail of improperly kept classified documents.
As for the documents Trump retained, if the jury isn’t able to study the papers for themselves to determine how sensitive they were, I doubt the jurors will vote to convict the former president and current presidential candidate for being a pack rat. So will the documents be declassified? Will jurors be given security clearances?
That’s why the country needs to hear from Garland. Why the Justice Department dawdled so long in bringing its expansive charges just as the 2024 election season gets underway is deeply puzzling. I’ve always dismissed conspiracy theorists and pushed back on “deep state” paranoia, while defending the great majority of professionals working at the FBI and elsewhere in the Justice Department. But this sequence of events has painted both the FBI and DOJ a deep blue in the eyes of red America. That’s going to be very difficult to undo.