Jack Smith's indictment of Trump is devastating: A reckless criminal has finally met his match

Trump loyalists will circle the wagons, of course. But Smith's "speaking indictment" hit Mar-a-Lago like a tsunami

By Gregg Barak

Contributing Writer

Published June 10, 2023 12:00PM (EDT)

Donald Trump (Photo illustration by Salon/Getty Images)
Donald Trump (Photo illustration by Salon/Getty Images)

The unsealed federal indictment released by the Justice Department on Friday afternoon have revealed that the grand jury charges and counts in the case of U.S. v. Donald J. Trump and Waltine Nauta revolve around "the most sensitive classified documents and national defense information gathered and owned by the United States government, including information from the agencies that comprise the United States Intelligence Community."

Specifically, after his presidency, Trump retained classified documents originated by or implicating the equities of multiple intelligence community members and other executive branch departments and agencies, including the CIA, the NSA, the Pentagon, the State Department, the Department of Energy and various other more obscure entities.

Before this federal indictment was released, many legal commentators were wondering whether we would see a bare-bones indictment comprised of the most basic or essential elements of the crimes involved or what is called a "speaking indictment" that would — in this dangerous and unprecedented legal case — lay out as much detail as possible about Trump's alleged felonies relating to the mishandling of national security documents, obstruction of justice and false statements to law enforcement.

As it turned out, special counsel Jack Smith indeed gave us a speaking indictment — and one recounted, at least in part, through the actual words of Donald Trump both before and after the first subpoena was served at Mar-a-Lago just over a year ago. 

In Trump's own words as a candidate for president in 2016, here's what he had to say about classified information:

  • Aug, 18, 2016: "In my administration I'm going to enforce all laws concerning the protection of classified information. No one will be above the law."
  • Sept. 6, 2016: "We also need to fight this battle by collecting intelligence and then protecting our classified secrets…. We can't have someone in the Oval Office who doesn't understand the meaning of the word 'confidential' or 'classified'."
  • Sept. 7, 2016: "[O]ne of the first things we must do is to enforce all classification rules and to enforce all laws in relation to the handling of classified information."
  • Sept. 19, 2016: "We also need the best protection of classified information."
  • Nov. 3, 2016: "Service members here in North Carolina have risked their lives to acquire classified intelligence to protect our country."

As president, on July 26, 2018, Trump issued the following statement while discussing the revocation of security clearances to some former officials who had criticized him:

As the head of the executive branch and Commander in Chief, I have a unique, Constitutional responsibility to protect the Nation's classified information, including by controlling access to it…. More broadly, the issue of [a former executive branch official's] security clearance raises larger questions about the practice of former officials maintaining access to our Nation's most sensitive secrets long after their time in Government has ended. Such access is particularly inappropriate when former officials have transitioned into highly partisan positions and seek to use real or perceived access to sensitive information to validate their political attacks. Any access granted to our Nation's secrets should be in furtherance of national, not personal, interests. 

Lastly, Smith's indictment quotes from an exchange between Trump and a staffer, heard laughing during a recorded interview at Trump's New Jersey golf resort on July 21, 2021. He was speaking to a writer and publisher concerning a proposed book and mentioned a "senior military official" — widely assumed to be Gen. Mark Milley, chairman of the Joint Chiefs of Staff — who had advised Trump against launching a military attack on a foreign nation designated as "Country A" (widely assumed to be Iran). 

Upon greeting the two guests and his two staff members, Trump stated, "Look what I found, this was [the Senior Military Official's] plan of attack." Later in the interview Trump stated, "Well with [the Senior Military Official] —uh, let me see that, I'll show you an example. He said that I wanted to attack {Country A]. Isn't it amazing? I have a big pile of papers; this thing just came up. Look. This was him. They presented me this. This was him. This was the Defense Department and him."

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The indictment also demonstrates Trump's frivolous, cavalier, indifferent and reckless approach not just to the rule of law and global stability, but also to anything remotely reflecting the presidential oath of office and its mandate to "preserve, protect and defend the Constitution of the United States."

Trump is "boxed in," so to speak, by his own big mouth, which has provided numerous examples that demonstrate his keen knowledge of the law — his understanding of what he could and could not do — as well as his clear intent not just to defy requests to hand over national security documents he had kept for his own purposes, but also to make false statements to the FBI and to instruct his aides to help him conceal numerous boxes of documents. 

Trump's pattern of false statements, along with convincing attorneys, accountants and other fixers to do his bidding, is also evident here. But two of his lawyers quit 14 hours after the indictment, evidently reluctant to commit crimes on his behalf.

Trump's false statements, along with his historical pattern of getting attorneys, accountants, commissioners, legislators, fixers and so on to do his bidding, are also evident here. Two of his attorneys, evidently reluctant to commit crimes on Trump's behalf, resigned from his defense team some 14 hours after the indictment was announced. In an immensely damaging turn of events for Trump, special counsel Smith successfully pierced the attorney-client between Trump and his former lawyer Evan Corcoran, also apparently unwilling to risk prison time for the boss. . 

Factually, here are the only things you really need to know about this legal case. First, between January 2021 and August 2022, Trump stored at least 300 classified documents in boxes scattered about Mar-a-Lago, including in a ballroom, a bathroom and shower, an office space, his bedroom and a storage room. During that period, the club hosted events for tens of thousands of members and guests — and was not, by any stretch of the imagination, "an authorized location for the storage, possession, review, display, or discussion of classified documents."  

How serious were those documents? Smith's indictment reports that they "included information regarding 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 attack; and plans for possible retaliation in response to a foreign attack."

So we're talking not just about U.S. national security but the security of the world. Trump wasn't just trying to retain letters, notes, cards, photographs or random memorabilia, but rather classified documents that were as sensitive as they can possibly get. Over the course of his four years in office, Trump was evidently collecting and retaining such highly sensitive material on a regular basis.

We could speculate on his motives for doing so, although they are irrelevant to his alleged crimes and unnecessary to obtain a conviction. They might include, for example, degrees of narcissism, pathology and a desire for revenge, along with the possibility of using the documents for political leverage or financial gain in the future. 

In introducing the charges and counts, Smith begins his narrative. On March 30, 2022, the FBI opened a criminal investigation into the unlawful retention of classified documents at Mar-a-Lago, and a federal grand jury began its work the next month. When the grand jury issued a subpoena requiring Trump to turn over all documents with classification markings, he actively tried to obstruct both the FBI and the grand jury and conceal his continued retention of such documents. His actions included:

  1. suggesting that his attorney falsely represent to the FBI and grand jury that Trump did not have documents called for by the grand jury subpoena;
  2. directing Walt Nauta, his co-defendant, to move boxes of documents to conceal them from Trump's attorney, the FBI and the grand jury;
  3. suggesting that his attorney hide or destroy documents called for by the grand jury subpoena;
  4. providing to the FBI and grand jury only some of the documents called for by the subpoena, while claiming that he was cooperating fully; and
  5. falsely representing that all documents called for by the grand jury subpoena had been produced, while knowing perfectly well that was not true.  

A public coterie of Trump-Republican apologists, including House Speaker Kevin McCarthy, Gov. Ron DeSantis of Florida, Sen. Josh Hawley of Missouri and Sen. Roger Marshall of Kansas, have been busy circling the wagons around Trump and gaslighting the public.

Does anyone really believe that Ron DeSantis is "genuinely upset" by Trump's indictment? Or that Kevin McCarthy "does not inwardly rejoice to see Trump meet justice?"

Hawley told Fox News host Laura Ingraham, "This is about whether the Constitution is still real in this country. This is about if any American can expect the due process of the law." Marshall wondered whether this was part of a concerted effort by the DOJ and the FBI to take down the former president. "Every American should be alarmed by [this] indictment," he posted on Twitter, adding, "Sadly, once again, Lady Justice has taken off her blindfold."  

As David Frum asks, does anyone really believe that "DeSantis — so badly trailing in the polls behind former President Donald Trump — is genuinely upset by his rival's indictment?" Or that "McCarthy — so disgusted by Trump in private — does not inwardly rejoice to see Trump meet justice?" Frum observes that their expressions of concern are "as sincere as the grief at a Mafia funeral."

Meanwhile, Fox News presented an incomprehensibly distorted version of the case, complete with a graphic announcing "Banana Republic" and images of President Biden flanked by Attorney General Merrick Garland and FBI Director Christopher Wray.

Sean Hannity claimed that "despite a mountain of evidence of public corruption, the FBI, the DOJ, they have been protecting and continue to protect the Biden family, just like Hillary Clinton was protected in 2016 and before that, the Clinton Foundation was protected," but that now the DOJ was "apparently moving at lightning speed to prosecute Donald Trump. Why? Over some documents stored in a secure room that the FBI had access to months earlier at Mar-a-Lago."

One could politely describe those half-baked falsehoods as a weak attempt at deflection and misdirection. If they make anything clear, it's that Donald Trump has no defense.

By Gregg Barak

Gregg Barak is an emeritus professor of criminology and criminal justice at Eastern Michigan University, and the author of multiple award-winning books on the crimes of the powerful including Criminology on Trump (2022) whose sequel, Indicting the 45th President: Boss Trump, the GOP, and What We can Do About the Threat to American Democracy will be published April 1, 2024. 



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