Editor’s Note: Jennifer Rodgers is a former federal prosecutor, adjunct professor of clinical law at New York University School of Law, lecturer-in-law at Columbia Law School and a CNN legal analyst. The opinions expressed here are her own. Read more opinion at CNN.
Former President Donald Trump has made history again. With the unsealing of an indictment on Friday, Trump becomes not only the first former president to face federal charges, but also the first former president accused in a legal document of knowingly endangering our national security.
This extraordinary indictment charges Trump with 37 counts, including 31 counts of willful retention of national defense information under the Espionage Act. It also charges Trump and his aide Walt Nauta with withholding or concealing documents, conspiracy to obstruct justice and making false statements.
The indictment, which is extraordinary in its content, is a textbook example of what a charging document should be in its clarity and tone. All Americans should read it. It powerfully and concisely describes how Trump, with access to the nation’s most sensitive information, packed up hundreds of classified documents from the White House and took them to Mar-a-Lago where they floated around in various unsecured locations until the government initially requested and then demanded their return. It also details how Trump allegedly enlisted Nauta in an illegal scheme to hide them from Trump’s own lawyer and, ultimately, the FBI and the grand jury investigating the matter.
Trump has denied all wrongdoing, saying in a video statement that he is “an innocent man” who has “done nothing wrong,” while attacking the Justice Department as corrupt and politically motivated. An attorney for Nauta declined to comment on Friday.
The indictment is full of bombshells. Lest one think that these highly sensitive government documents merely gathered dust in their boxes at Mar-a-Lago or served as props for Trump’s solitary trips down memory lane, the indictment makes clear that Trump, on more than one occasion, brandished documents and discussed the contents in front of people who lacked the appropriate clearances, a fact explicitly acknowledged by Trump in a Bedminster recording quoted in the indictment.
The indictment also contains significant evidence that was not previously known, including text messages and phone records that reveal how the boxes of documents were moved around the resort and to Trump’s residence in New Jersey.
Another trove of evidence came from a Trump attorney, whose notes and memos described Trump apparently praising an unnamed attorney of Hillary Clinton for claiming responsibility for deleting her emails – a potential suggestion that Trump’s lawyer could likewise destroy the Mar-a-Lago documents and take responsibility.
In another stunning incident, Trump’s attorney recalled another conversation with the former president after the attorney had conducted a search at Mar-a-Lago to try to respond to a May 2022 subpoena for classified documents. According to the attorney, Trump made a plucking motion with his hands, suggesting that the lawyer could simply remove anything bad.
Even the statutory language part of the indictment that identifies the documents on which the Espionage Act charges are based — usually pretty dry reading — drives home the extraordinarily serious and reckless nature of Trump’s conduct. Most of the 31 documents are classified at the Top Secret level, and many are even more sensitive, with additional access restrictions. While only general descriptions of the documents are provided, most involve foreign nations, and many involve the military capabilities of the US and other countries.
The indictment is extremely damning, and Trump’s likely defenses will be unavailing. This is not primarily an obstruction case, sometimes disparaged as a “process” crime; this is a national security case.
Trump’s previous public statements about declassification, whether it be his claim of an automatic process or one he could enact “by thinking about it,” are preposterous and, more importantly, irrelevant, because the statute under which he has been charged doesn’t require that the documents be classified. And the evidence as described is overwhelming.
The recording of Trump from Bedminster alone destroys any defense that he didn’t know the nature of the documents or the limits of his authority related to them. And evidence of obstruction is not just included in the indictment as a means of tacking on additional counts — it helps establish consciousness of guilt for the underlying charges. According to the evidence laid out in the indictment, the lengths that Trump and Nauta went to in hiding the boxes of documents from Trump’s own lawyer, and Trump’s conversations with that lawyer about stonewalling or simply denying that he had any documents, demonstrate that Trump knew what he was doing.
So now that we’ve had a chance to absorb the indictment, what happens next?
On Tuesday, Trump and Nauta will be presented and arraigned in a Florida courtroom. Terms of their release (I expect that neither will be detained) will be set, and some sort of schedule for at least the next court appearance will be addressed.
I believe that one of the first things that DOJ will turn to after Tuesday is revisiting whether Nauta will cooperate. Reporting indicates that Nauta had previously declined to do so, but that may change now that he faces six criminal counts, four of which carry a maximum 20-year sentence. I expect DOJ will take one more crack at bringing him on board and getting him to plead guilty and testify against Trump in exchange for the likelihood that the judge would impose a lighter sentence. While DOJ already says it has phone records and text messages involving Nauta, the recitation of conversations with his co-conspirator, Trump, would be extremely valuable evidence.
I also expect DOJ will want to move this case as quickly as possible, and indeed, special counsel Jack Smith indicated a desire for a speedy trial during his brief statements on Friday. Both the reason for and the challenge with that is the calendar: between the time it takes to get through motions and prepare for a trial like this one (which takes about six to nine months), the already scheduled March 25, 2024 trial in the business fraud case brought against Trump by Manhattan District Attorney Alvin Bragg (in which Trump has proclaimed his innocence), and the commencement late next summer of the 60-to-90-day dark period before an election during which DOJ policy provides that no overt actions be taken that may influence that election, time is short.
If the trial doesn’t happen before the election, it may not happen at all; if Trump becomes president again, he would almost certainly order his new attorney general to drop the case. That also explains why DOJ likely wants a speedy trial, and why it’s in Trump’s interest to delay this case as much as possible.
But a speedy trial will depend on the cooperation of the trial judge, and if the trial judge is Aileen Cannon, that appears to be bad news.
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As I wrote in a CNN Opinion piece last year, Cannon issued an astonishing order — which many legal experts found to be extremely weak in its legal analysis — in favor of Trump. After the Mar-a-Lago search in 2022, she improperly exercised jurisdiction over the search warrant, according to a later appeals-court ruling; ordered the appointment of an entirely unnecessary special master at Trump’s request and over the government’s objection; and then overruled the special master in a way that was favorable to Trump. Cannon, who notably delayed DOJ’s investigation by months, was later resoundingly overruled by the 11th US Circuit Court of Appeals in an embarrassing rebuke, and it’s possible that she has learned her lesson and would preside fairly.
But it’s also possible that she could once again act in favor of Trump based on flimsy interpretations of the law. And if she slow walks pretrial proceedings, grants Trump the adjournments he will undoubtedly seek and declares that her trial calendar will not accommodate it, the case could be unresolved before the 2024 election.
DOJ would be wise to consider challenging her assignment to the case, depending on how the very early proceedings go. Getting Cannon removed would be an uphill battle, but it might be worth the attempt to vindicate the interests of all Americans in this critical national security matter.
