As soon as next month, a grand jury out of Georgia will be tasked to consider charges against former President Donald Trump and his Republican allies for trying to overturn the 2020 election. Sworn in Tuesday, these jurors will soon decide whether to approve indictments against Trump in the investigation led by District Attorney Fani Willis of Fulton County, Ga., which began in 2021.
Already, the Department of Justice has indicted former President Trump with 37 felony counts related to the mishandling of classified documents, obstructing justice, making false statements and conspiring. In spite of stacks of boxes of government documents the FBI found at Mar-a-Lago, his social club and residence in Palm Beach, Fla., the former president has pleaded not guilty.
“When he left office, President Trump apparently took with him a bunch of classified and secret documents,” said Leah Litman, a professor at the University of Michigan Law School, on a recent episode of Ms.’ On the Issues With Michele Goodwin podcast. “The federal government basically begged him to give them back, over a series of escalating, legal coercive measures—investigating, requesting, subpoena, search warrant. And now finally since he’s still refusing to admit he did this, they indict him.”
The episode discussed “the weight of where we are in our democracy … thinking about people scaling the Capitol, the Confederate flag for the first time making its way to Washington, D.C., and yet throngs of millions of Americans who believe that the former president was in fact wronged, was in fact robbed, that he is speaking truth to power,” said Michele Goodwin, executive director of Ms. Studios and co-faculty director of the O’Neill Institute at Georgetown Law.
The charges were brought on by special counsel Jack Smith, a Justice Department prosecutor and former chief prosecutor for the special court in The Hague, who Attorney General Merrick B. Garland tasked with two criminal investigations regarding the former president:
- “whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021,” and
- and investigation “involving classified documents and other presidential records, as well as the possible obstruction of that investigation … in the Southern District of Florida.”
Smith “has kept a really low profile throughout this entire investigation,” said Litman, who is also the co-host of the podcast Strict Scrutiny. “I think he really wanted his work to speak for itself.
“The indictment is what’s known as a ‘speaking indictment,'” she continued. “It lays out in detail the government’s theory of the case, the factual allegations, the evidence that the government wants to present, and I think he is really trying to move the case as efficiently as possible, but also abiding by all of the rules and being overly formal, such that the government’s fairness and procedures are above reproach and can’t be questioned.”
“This case is not just about him taking the documents, but him refusing to give them back,” Litman said. “When the federal government asked for the materials back, he basically tried to find people to hide the documents and to help him get away with this.”
Documents, found in a bathroom, a ballroom and elsewhere, included information on “defense and weapons capabilities of both the United States and foreign countries, United States nuclear programs, potential vulnerabilities of the United States and its allies to military attacks, and plans for possible retaliation in response for foreign attack,” according to the DOJ filings in U.S. v. Trump Nauta—a reference to Walt Nauta, one of Trump’s aides.
After Trump’s repeated refusal to return the documents or even admit he took them, the FBI searched Trump’s residency in August 2022 and found “more than 100 documents [with] classification markings. Among the items seized were 18 documents marked as [TOP SECRET], 54 marked as [SECRET], 31 marked as [CONFIDENTIAL] and 11,179 government documents or photographs without classification markings,” according to The New York Times. They also found 48 empty classified folders.
While the documents were housed at Mar-a-Lago, the club held over 150 social events, hosting thousands of guests.
“He is apparently recorded, as the indictment lays out, admitting that he knows he doesn’t actually have the legal authority to declassify these documents anymore,” said Litman. “So, he knows, right, that what he’s doing doesn’t comply with the law.
“I think the point is he just doesn’t care, and that has always been one of the greatest threats of the former president—he does not believe in the concept of law or democracy when that runs counter to what he wants to do. He apparently just wanted to show off the attack plans and the government secrets because that made him feel special or important.”
Trump said in reference to Hillary Clinton’s handling of classified materials, “[O]ne of the first things we must do is to enforce all classification rules and to enforce all laws relating to the handling of classified information,” on Sept. 7, 2016, according to the DOJ. And on Aug. 18, 2016, during his campaign tour, he said, “In my administration I’m going to enforce all laws concerning the protection of classified information. No one will be above the law.”
Concerns over national security are at the forefront of the indictments, as many documents on national security-related topics were unsecured for many months.
“The unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods,” wrote Smith.
“I think people are familiar with the notion that the government probably over-classifies documents, but what has come out about the secret, classified material that former President Trump had is extremely serious,” said Litman. “When you think about, for example, allies or other countries making a decision about whether to share highly sensitive secret information with us in the future, or cooperate with us on human intelligence, or people willing to become human sources for the United States and they think, ‘Well, what if some crazy reality television star becomes president and wants to feel like the big man on campus and goes around blaring that I am a spy and secret source’—I mean, of course that is damaging to the country’s security, its relationship with its allies, its credibility, and its ability to carry out covert intelligence.”
Democracy and national security will be important topics in the 2024 elections. Upholding accountability and countering authoritarian tendencies will run parallel.
“The worst thing you can do for a democracy is just let it slide when people try to do a coup and undermine democracy. That is how democracy dies. It is worth pursuing the fight to keep people accountable under the laws for undermining our democracy,” Litman said.
Hear more from Litman on the Trump indictments via “Fifteen Minutes of Feminism—The Trump Indictments: Unsealing the Federal Indictment (with Leah Litman).”
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