When the federal indictment against former president Donald Trump was unsealed Friday, I scoured news reports looking for the bombshell that I believed had to be there — perhaps allegations of trading classified documents to a foreign power or leveraging secrets for business gains. Short of that, I was convinced charges would not have been filed.
I was wrong. The 37 charges in the indictment were mostly based on information already in the public record. As The Post reported, “the bulk of the charges” — 31 — “relate to willful retention of national defense information,”technically a violation of the Espionage Act. The law was created in 1917 “to crack down on wartime activities considered dangerous or disloyal, including attempts to acquire defense-related information with the intent to harm the United States,” as the government’s Intelligence Community website describes it. Except nowhere do the charges indicate that Trump is suspected of hoarding documents to betray the country.
Other charges amount to various ways of saying he withheld or concealed — or schemed to conceal — documents or records. These are just creative ways to charge Trump with numerous crimes over one central action. In a country where many experts agree that too many documents are classified in the first place, bringing felony charges against a former president for possessing some is overkill.
Finally, there’s that reliable charge of last resort: “obstruction.” Prosecutors far and wide learn early on that if you can’t nail them on the crime, nail them on trying to obstruct the investigation of the crime.
Let’s be clear: There’s no good excuse for Trump holding onto classified documents, especially after the government demanded their return. But it’s not in Trump’s psyche to do what’s logical or easy. We know this. He takes every confrontation as a personal challenge. It’s what some people love about him, and what has so exhausted the rest of us.
But let’s also be clear about this: Bringing charges related to the possession of classified documents against a current or former president for anything short of colluding with our enemies or selling them on the black market is unnecessary, unwise and destructive to democracy. It will exacerbate our political polarization and dominate the daily news cycle much like the Russian collusion hysteria of Trump’s first two years in office. No one can be looking forward to that.
But the biggest downside of indicting Trump is the profound line crossed by a sitting president using — or abusing, to many millions of people — the power of the state to arrest and possibly imprison a political opponent.
With this indictment, our country has entered dangerous new territory. In 2019, Trump was roundly criticized (and ultimately impeached and acquitted) for asking Ukraine to investigate Joe Biden and his son Hunter. And Biden wasn’t even a declared candidate yet. To many inside the country and beyond, Thursday’s indictment will appear as more brazen and even authoritarian in nature. Yes, there’s a special prosecutor and a grand jury and their vaunted independence. But in reality, special counsel Jack Smith works for Attorney General Merrick Garland, who serves at the pleasure of Biden. The degrees of separation are not reassuring.
No one is above the law, and it is not so difficult to imagine the kind of grave crime that would leave an administration with no choice but to prosecute a president’s chief political rival. That is just not the case here. Yes, these charges are defensible from a strict interpretation of code, but prosecutors always have discretion to consider the broader context, and here the Justice Department has failed the highest-stakes test of prosecutorial discretion one can imagine. As president, Trump had already seen all the classified documents in question. He apparently retained them not for nefarious purposes, but under a misguided sense of entitlement. He was sloppy and careless with them — hardly unprecedented at the highest levels of government. Whether Trump alluded to them in conversation or even briefly showed a document to visitors, felony indictments appear personally and politically vindictive.
And yet, Trump’s hubris regarding classified material is another reason — on top of his refusal to acknowledge his 2020 election loss — for Republicans to look elsewhere for their 2024 standard-bearer. This episode is a stark reminder that should he regain the White House, Trump’s penchant for personal drama will always sidetrack opportunities for real accomplishment.
But Trump’s fate should be decided by voters, not the Justice Department — certainly not the Biden Justice Department — or the courts. Based on what we know now, the underlying offense does not warrant the national upheaval that comes with charging a former president and the likely 2024 Republican nominee.
This indictment may buoy Trump’s enemies, but it is not good for the country.
https://www.washingtonpost.com/opinions/2023/06/10/trump-indictment-espionage-danger-democracy/