How to Read the Trump Boxes Indictment

Don’t let knee-jerk partisan tribalism prevent you from reading the Trump boxes indictment critically.

I t’s tempting to retreat immediately into partisan and tribal trenches when confronted with something like the federal indictment of Donald Trump for retaining and concealing boxes of sensitive and classified documents at Mar-a-Lago. There is a powerful pull to view the whole thing solely through the lens of what you already thought of Trump, or of his legal pursuers, or of the Justice Department and the FBI.

Those things matter. But the facts matter, the law matters, and the spirit and practice of due process matter in distinguishing what is true from what is not. A thing as consequential as the first-ever federal indictment of a former president demands that we scrutinize it with real seriousness.

Cause for Mistrust

There are some glaringly conspicuous reasons why conservatives and Republicans are right to greet this indictment with skepticism, and it is reasonable for that attitude to animate our analysis of the indictment.

First, of course, it is an indictment. An indictment is not evidence or a verdict; it is simply a series of accusations. The legal system presumes the innocence of the defendant precisely because the facts alleged in an indictment don’t always end up getting proven at trial, after defense lawyers get to poke holes in them or present their own side of the case. The legal presumption of innocence doesn’t bar us, in the court of political opinion, from believing the truth of allegations that seem well-supported by evidence, but as a social value it still cautions us not to jump straight to the guilty verdict without assessing the credibility of the allegations.

Second, we have crossed a Rubicon here. No president before Trump has ever been indicted. No leading candidate for a major-party presidential nomination has ever been indicted. While the Manhattan district attorney was the first to cross that line, special counsel Jack Smith reports to the Department of Justice, which reports to the sitting president. Joe Biden defeated Trump three years ago and would face him again if both men (their parties’ current leaders in the polls) win their respective nominations. And for all of Trump’s political liabilities, he currently leads Biden by two points in the RealClearPolitics national polling average in a hypothetical head-to-head matchup. The political incentive for the Biden DOJ to damage Trump politically is powerful.

As I have argued before, the unprecedented nature of such an indictment demands that it meet a high standard of clear legal violations that are regularly enforced. That standard seems to be met here — albeit on the basis of charges that were famously not brought against Hillary Clinton in a similarly egregious situation.

Third, the political incentives for Biden and his administration are even more specific. It is well known that Biden and his political team believe, with good reason, that Trump would be an easier general-election opponent than another Republican. Democrats are not above meddling in Republican primaries to pick their favored opponents; they spent tens of millions of dollars on this precise strategy in 2022, almost always supporting candidates who identified with Trump. They know perfectly well that Republican voters will rally around Trump if he is being criminally charged by Joe Biden’s administration for the very crimes that Hillary and Biden himself have been given a pass on. This is a particular reason to mistrust this indictment.

Fourth, the pursuers of Trump in general, and federal law enforcement in particular, have severely damaged their credibility in recent years in ways that should subject their work to more public skepticism. Bragg’s indictment is comically shoddy, abusive, and full of obvious legal defects. The Russiagate investigation was, as we have seen, launched to investigate nonexistent crimes on the basis of an FBI fraud on the FISA court. The Justice Department under Merrick Garland has become frequently indistinguishable from a left-wing blog, going easy on literal left-wing bomb-throwers and rioters; slow-walking serious investigations of the Biden family while stonewalling congressional demands for information; and using its law-enforcement powers to build political narratives. That last objective includes compiling bogus statistics, branding parents complaining to school boards as domestic terrorists, and using heavy-handed and intimidating tactics to bring abusive charges against pro-lifers. The DOJ has not been especially honest with the public about this very investigation. Regardless of whether you entered the past eight years with a lot of faith in the FBI and the Department of Justice or very little, any rational American must have less confidence in their integrity, fairness, candor, and sobriety than we did in 2015.

Mistrust, but Verify

All of those background reasons for skepticism should weigh on how we read the indictment. None of them counsel for simply pretending that this whole thing is just another “hoax.”

I spent a lot of my two-decade career as a lawyer reading allegations — usually in civil complaints, sometimes in criminal indictments. There are four possible ways in which allegations can mislead the reader:

1. The allegations are factually false.
2. The allegations, whether true or not, can’t be proven by admissible evidence.
3. The allegations leave out important context that would lead to a different conclusion.
4. The allegations don’t actually add up to a violation of the law.

Consider the possibility here of each of the four.

False Allegations

Putting phony facts in an indictment signed off on by this many levels of review would require, in essence, a conspiracy. Now, conspiracies are real sometimes: This very indictment alleges one, and the Durham Report details something that functioned very much like a conspiracy even if it wasn’t an entirely formal one. It is hardly unheard-of for prosecutors to allege things that end up being revealed as untrue. But in considering any theory of a conspiracy, it is worth asking what one is being asked to believe without evidence, and how many people would need to be in on it. That should guide our sense of what might be false in this indictment, and what is very unlikely to be false.

Despite all the flaws of the DOJ and the FBI, they remain professional organizations. Even given the decline in rigor and norms of ethical behavior with the spread of progressivism within the legal profession, lawyers and law enforcement agents still mostly know how and why to be careful and cover themselves. If nothing else, their willingness to push the envelope will vary based on what they think they can get away with. And this is all being done under the oversight of Jack Smith, who is by no means a Democratic partisan, nor a senior citizen like Robert Mueller who may not have been on top of everything his staff was doing.

This matters a lot when a public pleading is filed that initiates a legal process that’s expected to end up before a judge and/or a jury. That is the case with a criminal indictment of a wealthy, powerful, public man who has every incentive to fight the charges tooth and nail. With one conspicuous exception — I’ll get to that in a moment — everything in this indictment needs to stand up in court.

One of the major reasons why the Russiagate investigation was so rife with abuse was that it was initiated as a counterintelligence probe, not a criminal investigation, and it sought warrants from the FISA court, which hears sealed applications that are rarely seen by the public. The people who used shoddy evidence to get warrants thought those warrant applications would never see the light of day. The more true-believing members of the investigation thought the warrants would unveil things explosive enough that nobody would look too closely at how they got the original warrants. Not so here.

Moreover, it is worth recalling that even the Russiagate story was not a complete hoax. It was absolutely the case that Donald Trump, his family, and members of his campaign had various unsavory ties to Russia, said things publicly suggestive of undue sympathy for Vladimir Putin, and expressed both public and private interest in receiving political dirt from Russian sources (just as Trump himself was later impeached for trolling for political dirt from the president of Ukraine). All of that was real, and remains real in spite of the misconduct of the FBI and the Justice Department. The phony part of the Russiagate investigation was in the connective tissue between that conduct and the legal process: “Collusion” isn’t a real crime, there was never any evidence of Trump conspiring with Russians to do anything illegal or anything that affected the outcome of the 2016 election, warrants were sought and obtained on the basis of partisan and foreign-sourced (sometimes Russian-sourced) political-opposition research, etc. It wasn’t all invented. But vitally important parts were.

It is quite clear that a lot of what is in the boxes indictment is true; that doesn’t mean all of it is. We know, because there’s been an extensive public controversy, adversarial legal proceedings, and public admissions by Trump and his representatives, that Trump took a lot of records with him when he left the White House, brought them to Mar-a-Lago, and ended up having them seized by the FBI when it raided the resort last August. That much isn’t really even in dispute. Nor are the public statements by Trump that are cited here as evidence of his understanding of the importance of secure handling of classified materials.

Next, there is the stuff in the indictment that comes from documentary, photographic, or recorded evidence. It is always possible, but highly unlikely, that this is fabricated. A lot of people would need to be in on that. There’s quite a lot of it here, and it’s damning. It would be a giant fiasco for the DOJ and the FBI if the photographs in the indictment were faked or the recordings and text messages described weren’t real. I don’t think I’m going far out on a limb assuming that they all exist and are genuine. I will be legitimately shocked if they are not.

Then, there’s the evidence that comes from witness testimony. This is where the fewest people need to be misbehaving in order for the allegations to be false. In a criminal case, the likeliest source of false allegations in an indictment comes from trusting the word of witness testimony. That is often the testimony of a cooperating witness or co-conspirator who tries to project his own criminal conduct onto the defendant, or who exaggerates in order to cut a deal. Even in complex white-collar cases where there appears to be a serious paper trail, it can sometimes be the case that a witness tells a story that adds crucial context to the documents, but that context turns out to be false and it wasn’t exposed before the grand jury because there was no defense lawyer around to cross-examine the witness.

Nearly all of the testimony that would support the factual allegations in this case, however, would come from Donald Trump’s own employees, mainly his lawyers. It seems unlikely that these are hostile witnesses, even after he hung them out to dry and tried to get them blamed for his own misconduct in misleading the National Archives and Records Administration and the grand jury. Nor is it likely that these are people who committed crimes on their own initiative and are belatedly trying to pin those on Trump. Nobody else had the opportunity to move deeply classified documents to Mar-a-Lago, or a comparable motive to lie to conceal their presence there.

As Andy McCarthy explains:

The evidence comes from Trump’s lawyers. The people who were trying to minimize his criminal exposure and push back against his destructive tendencies. The people who were trying to help him.

One of these lawyers, Evan Corcoran, kept trying to help Trump even after he knew he’d been had. For his trouble in representing a former president, Corcoran was subpoenaed and forced by a federal judge and an appellate court to testify. He fought them all the way, struggling to preserve Trump’s attorney-client privilege. . . .

Corcoran was not trying to hurt Trump, even though Trump had thought nothing of putting the lawyer’s livelihood at risk. Corcoran provided the lurid testimony reflected in the indictment — including Trump’s suggestions that he falsely tell the FBI and grand jury that he did not have documents marked classified, and that he “pluck” out of a package of documents responsive to the subpoena “anything really bad in there” — because the law required him to, not because he wanted to.

The other main source of witness testimony in this indictment will come from the FBI agents who conducted the raid on Mar-a-Lago. That brings us to . . .

Unprovable Allegations

Now, we get to the point at which the government may actually have a serious problem. It’s both a practical problem in trying the case, and a legitimate perception problem in convincing the public of the legitimacy of this case. There are crucial pieces of the indictment that the jury will never see. We have many photographs of boxes, but what was in them?

That raises the specter of the same sorts of “Deep State” shenanigans that plagued Russiagate. The things that were done to impose a process-is-the-punishment investigation on Trump then may come back to haunt the FBI and the DOJ now that they really do seem to have Trump dead to rights. And if they fail as a result, it will be their own fault.

Thirty-one of the 37 counts in the indictment are under 18 U.S.C. § 793(e), a section added in 1950 to the Espionage Act of 1917. Let’s break the charge against Trump into its four elements:

[1] Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note (the “Unauthorized Possession” requirement)

[2] relating to the national defense. . . . (the “National Defense Information” requirement)

[3] willfully retains the same (the “Willful Retention” requirement); and

[4] fails to deliver it to the officer or employee of the United States entitled to receive it [commits a crime] (the “Failure to Deliver” requirement).

NOTE: This list of elements, and the following discussion, has been corrected since this column originally ran. See here for an explanation.

How will the government prove its case? Consider the National Defense Information requirement. The statute doesn’t say anything about classified documents. Nor should it. The classification system is designed to protect information that relates to the national defense, whose disclosure could injure the United States and/or give advantage to a foreign nation. The fact that a document is classified is certainly relevant: It means somebody looked at this and decided that those elements were met, and it puts the defendant on notice that this may contain highly sensitive information. But we all know that not everything that is classified actually meets the legal requirements for classification. A person charged with a criminal violation is entitled to contest whether a classified document actually contains non-public information relating to the national defense.

Rather than have guilt or innocence depend on proof of classification status, the statute requires proof beyond a reasonable doubt that the contents of the document in fact related to the national defense.

Here’s the catch: The jury will never see the documents themselves and make their own assessment. If they really are sensitive national-security documents such as potential U.S. war plans, satellite battle maps, and assessments of American vulnerabilities, the government can’t let them become public. If they’re not that sensitive, the prosecution can’t get them declassified without admitting that they’re not sensitive and losing the case. To some extent, the prosecution needs to bring people who have seen the documents — including the FBI agents who testify that these are the same documents they took from Mar-a-Lago, and that nobody planted anything in the haul from that search — and tell the jury, “Trust us.”

That might be a tough sell inside the courtroom; it’s a very hard sell in the court of public opinion. Of course, the legal system has established ways of presenting evidence of the contents of a document that no longer exists or is otherwise unavailable for the jury’s review. Agents can testify that they reviewed the documents, and assuming Trump is able to hire lawyers with adequate security clearances, they can review the documents and cross-examine those witnesses. The indictment offers summaries, and a chart of such summaries (perhaps with more detail) can be offered to the jury. Prosecutors might produce redacted versions of some documents that illustrate the classification markings and give some indication of the originating agency.

This is an incredibly laborious process that could consume months of hotly contested pre-trial proceedings. Trump and his lawyers may do everything possible to make it hard to present this case. There is a long-standing “state secrets privilege” against putting sensitive documents in evidence, but the corollary is that courts sometimes find that a case simply cannot be fairly tried without them.

If you’re inclined to think that a large segment of the national-security state is bitter enough at Trump to set him up for this sort of charge, I confess that there’s not much I can do to persuade you that Trump will have a fair day in court to demand that the government prove otherwise. One thing working in the government’s favor, however, is that Trump was apparently stupid enough to actually wave around some of these documents in front of witnesses (possibly including Kid Rock), even in recorded conversations, while admitting that they were sensitive documents he wasn’t supposed to show them. That will make it a lot harder to claim that this is all nothing but a frame-up.

A second problem for prosecutors: Corcoran’s testimony was only elicited before the grand jury based on a decision that the attorney-client privilege had been abused in furtherance of a crime. That evidence will probably be admissible as a result, but there is sure to be a second effort by Trump’s lawyers to get it excluded.

Missing Context and Legal Flaws

Having gone on long enough, I’ll skim briefly over the final two issues now; but we may see more of them later, and they are related. In addition to the Espionage Act counts, there are six counts of varying types of obstruction of justice. Notwithstanding some floundering efforts to the contrary, none of these counts involves an obvious legal flaw. That said, the Willfulness requirement means that the prosecution needs to prove (as the Fourth Circuit has said) “specific intent to do something that the law forbids. That is to say, with a bad purpose either to disobey or to disregard the law.” That is normally a very high bar, but the allegations in the indictment look like more than enough to satisfy it, if proven.

As to missing context, it is likely that Trump’s legal team will want to put on testimony, or elicit cross-examination, to suggest that the case is not as open-and-shut as it reads on paper. Much will depend on what the defense can get out of Trump’s former lawyers, who may not be averse to fleshing out their stories in ways that are less damning than what’s quoted in the indictment. But there is a lot less room for ambiguity here than in a lot of criminal cases. Trump undoubtedly knew that he had the documents in his possession and that they contained things that were not supposed to be shown to anyone without security clearance. He’s allegedly on tape saying so. There may be more room for ambiguity in the allegations about his intent to have his lawyers mislead the grand jury about what he had.

We’re not all the way to knowing what the boxes indictment tells us. Read critically, it can’t dispel all sources of skepticism about this prosecution. That said, the parts of the indictment that seem most credible are awfully damning.