Trump's "peril is extreme": Former federal prosecutor on the historic Mar-a-Lago indictment

Charges against Trump almost "open and shut," says Dennis Aftergut — and prosecutors will ask for prison time

By Andrew O'Hehir

Executive Editor

Published June 12, 2023 5:45AM (EDT)

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

As the entire world now knows, Justice Department special counsel Jack Smith's sweeping indictment of Donald Trump on a range of charges relating to the Mar-a-Lago documents investigation was released in full last Friday afternoon. Numerous explications of this remarkable document are available from many different media sources; criminologist and Trump expert Gregg Barak supplied an analysis for Salon over the weekend. Even former Attorney General Bill Barr, a staunch defender of Trump's dubious conduct while in office, now forecasts a dire legal future for the embattled former president. 

But I still have questions; I imagine we all do. On Sunday I reached out to another frequent Salon contributor, former federal prosecutor Dennis Aftergut, now of counsel to Lawyers Defending American Democracy, a self-explanatory nonprofit. I wanted Dennis to share not just his legal expertise, although that's extremely important, but also his larger, atmospheric sense of this extraordinary indictment and its historical moment. We held this conversation by email; I have edited Dennis' responses here and there for clarity, but have not altered the substance of his remarks.

I've read a fair number of criminal indictments in 30 years as a journalist, and by any standard this one seems extraordinary. I'd like to ask you, as a former federal prosecutor, how you perceived it in a number of different ways. First of all, what was your general impression of Jack Smith's indictment overall — as a work of legal argument and narrative, and also as an event in legal and political history?

The narrative here is one of betrayal of a nation and its most precious secrets by a man who was the commander in chief for four years and who seeks that mantle again. There's never been anything remotely like it.

Just think about it. The disregard for the lives, the risk and the individual courage that goes into gathering information vital to our national security and our safety is incomprehensible. There is no way for the brain to wrap itself around what is described in this indictment, the violation of sacred trust, a one-man demolition crew working against the American intelligence system that has been built, brick by brick, over 80 years.

With the kind of conduct alleged in the indictment by the former occupant of the highest office in the land, how is any foreign intelligence service supposed to trust us to keep information confidential, to protect its methods of collecting our enemies' secrets or the identity of its sources?

It could take years, if not decades, to recover from the damage. 

In more concrete terms, how does that conclusion emerge from this indictment?

Put together three basic pieces: 1) The bone-chilling nature of the materials unlawfully taken from the White House; 2) the apparent exposure of those materials at Mar-a-Lago; and 3) what we know from public reporting about security there and our nation's enemies whose agents may have breached it.

First, focus on paragraph 77. It lists, with brief descriptions, 31 documents, many of which have what are called "compartmentalized" Top Secret markings.

"There is no way for the brain to wrap itself around what is described in this indictment, the violation of sacred trust, a one-man demolition crew working against the American intelligence system that has been built, brick by brick, over 80 years."

"Compartmentalized" means "information about certain intelligence sources and methods.​​" "Top Secret" signifies information that would cause, if revealed, exceptionally grave harm to the nation's security. Compartmentalized top secret documents are kept in secure structures, or SCIFs — the fortified rooms that protect against electronic surveillance or other efforts by outside parties to obtain the information.

Examples on the list of materials that Trump took to Mar-a-Lago include documents "concerning nuclear weaponry of the United States," "nuclear capabilities of a foreign country" — which could be North Korea, Russia, China or Iran, we just don't know. The materials Trump possessed at his resort home included documents "concerning military attacks by a foreign country," "timeline and details of attack on a foreign country," and "military contingency planning of the United States."

These are materials that almost anyone hostile to the interests of the United States would love to get their hands on. Which is why they should never be held at easily penetrated places like Mar-a-Lago. 

Second, the indictment describes — and indeed shows, via an abundance of photographs — boxes of documents stacked in exposed locations: A ballroom stage, a bathroom shower and in one instance, a Secret document "concerning military capabilities of a foreign country" that had spilled out of its box and onto the floor in a storage room. (The indictment does not say whether the room was locked at the time.)

Third, public reporting shows that in March 2019, a Chinese national named Yujing Zhang was arrested at Mar-a-Lago, carrying four cellphones and a computer thumb drive with computer malware on it. When detained, she claimed to be there to attend a nonexistent event. In her hotel room were "nine thumb drives, five SIM cards for cell phones ... and a device used to detect hidden cameras."

Not the usual uninvited guest.

In 2021 and 2022, a Ukrainian-born woman named Inna Yashchyshyn infiltrated Mar-a-Lago multiple times, using the false name "Anna de Rothschild." She was even photographed with Trump on the golf course. Yashchyshyn was reportedly associated with Valery Tarasenko, a Russian oligarch who lives in Florida.

These incidents are, in all likelihood, the tip of the iceberg.

Recognizing that we see here only the leading edge of the prosecutors' case (and nothing at all of the defense case), how strong does this evidence appear to you? How serious is Donald Trump's legal peril?

His peril is extreme on the law, but modulated by some practical advantages he has because the case is in Florida.

Objectively, the Espionage Act charges look virtually open and shut. There are 31 counts alleging that Trump willfully retained defense-related materials that he possessed without authorization.

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Jack Smith did not allege Trump's unauthorized possession of those 31 documents without being able to prove they were taken from the White House and then recovered by the government from Mar-a-Lago, almost certainly in the Aug. 8, 2020, court-authorized FBI search.

The only real question appears to be the mental component of the crime: Was the retention "willful" —  that is, was it knowing and intentional? Over a period of 18 months, the government asked for all its documents to be returned multiple times and ultimately needed a court-authorized search and seizure to recover more than 100 classified documents.

The separate charge of conspiracy to obstruct the grand jury's investigation also bears on "willfulness." The government has Trump lawyer Evan Corcoran's court-ordered grand jury testimony and notes. The indictment alleges that after the May 22, 2022, grand jury subpoena compelling Trump to return all classified documents, he said to Corcoran: "Wouldn't it be better if we just told them we didn't have anything here?" And then: "Well, look, isn't it better if there are no documents?"

"Judge Aileen Cannon is a Trump appointee who bent over backward for him in the documents case last year; she was slapped down for that by the appeals court. If the case is tried before her, Trump may have a wild card going for him."

In addition, the indictment charges that it was Trump who caused another lawyer, Cristina Bobb, to give the government a false affidavit on June 3, 2022, certifying there were no further documents in Mar-a-Lago responsive to the grand jury subpoena. That was untrue, as the August seizure of those 100-plus classified documents proved. Corcoran reportedly played the middleman in that false certification, and he is expected to testify that Trump was behind it. That would constitute both obstruction and proof of willfulness in violating the Espionage Act.

But then there are two important pragmatics weighing in Trump's favor.

First, Judge Aileen Cannon is currently assigned to the case. She is a Trump appointee who bent over backward for Trump in naming a special master to review the seized documents last year; she was promptly slapped down for that unlawful decision by the appeals court. If the case is tried before her, Trump may have a wild card going for him.

Second, Florida is Trump country. There's a distinct possibility that citizens who are true believers in anything the former president does could make it onto the jury. If so, in deliberations, one or more could refuse to vote to convict Trump regardless of overwhelming evidence. That would result in a hung jury.

The startling photographs of boxes of documents stored in impromptu locations — or scattered on the floor — have made headlines around the world. Their impact on the media and on public perception already appears significant. But what is their evidentiary value, if any?

A picture is worth a thousand words. Any reasonable juror would be infuriated by the haphazard nature in which such highly sensitive documents were handled. 

Which of the charges filed by Smith strike you as the easiest to prosecute? Which may be more challenging to prove beyond a reasonable doubt?

The 31 Espionage Act counts, as I've said, seem to be a lock for prosecutors. The conspiracy to obstruct charges require prosecutors to show that Trump's valet, Walt Nauta, knowingly agreed with Trump to hide and suppress the evidence sought by the grand jury in May 2022.

The question will be whether Nauta was simply following orders without any understanding of Trump's alleged intent to suppress evidence, or whether Nauta knew exactly what was going on. If the former, he may not have joined knowingly in an illegal objective and there would be no conspiracy. 

Bear in mind, however, that the indictment also charges Trump, along with Nauta, with five non-conspiracy counts of obstruction by concealing documents and making false statements. Trump can be convicted of those crimes regardless of Nauta's guilt. And the indictment's allegations against the valet strongly suggest that prosecutors have weighty evidence of his intentional involvement.

How do you think Trump's defense team read this document? What would be their most effective strategy? If you were advising a hypothetical defendant facing these charges, would you urge that individual to seek a deal at this point, or fight on in hopes of acquittal?

Good criminal defense lawyers lay out the options to their client, including the advantages of working out a deal with less prison time than would be likely upon a trial and conviction. Those lawyers would go through the evidence with the defendant and explain why they thought there was no counting on an acquittal or hung jury.

If they recommend a guilty plea, Trump will not agree.

On several of these counts, the maximum penalty is 10 or even 20 years in prison. No one believes that is likely in this case. But assuming a conviction on some of these charges, what kind of sentence do you think prosecutors would request for a defendant who is nearly 80 years old and the former president of the United States?

The crimes alleged are so serious, so damaging to the security and welfare of the United States, that prosecutors' obligation, should there be convictions, would be to ask for the maximum term of imprisonment available. The culpability of a former commander in chief who so betrays his nation, they would say, requires nothing less. That is especially so, they would argue, if there are convictions for obstruction, because the defendant has defied the legal process and the rule of law.


By Andrew O'Hehir

Andrew O'Hehir is executive editor of Salon.

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Classified Documents Dennis Aftergut Donald Trump Indictment Interview Jack Smith Mar-a-lago