For the first time in our nation’s history, a former president has been indicted by the federal government. And not just a former president, but the current front-runner in the race for the Republican presidential nomination.   

A federal grand jury in South Florida has returned a combined 38-count indictment against former President Donald Trump and his personal aide, Waltine “Walt” Nauta.  

The 44-page indictment includes 37 counts against former Trump—31 counts alleging a violation of willful retention of national defense information, one count of conspiracy to obstruct justice, one count of withholding a document or record, one count of corruptly concealing a document, one count of concealing a document in a federal investigation, one count of a scheme to conceal, and one count of false statements and representations. Nauta is named in five counts in the indictment.

Nauta worked as a valet in the Trump White House and as Trump’s personal aide at Mar-a-Lago, Trump’s Palm Beach compound, where the indictment alleges “more than 150 social events, including weddings, movie premieres, and fundraisers that together drew tens of thousands of guests” occurred between the time Trump left office in Jan. 20, 2021, and Aug. 8, 2022, when the FBI searched the premises.

Role of the Grand Jury  

By way of background, a federal grand jury is an investigative body charged with issuing subpoenas and hearing evidence, which is generally presented by a federal prosecutor; in this case, prosecutors working with special counsel Jack Smith, a career prosecutor who, immediately prior to his appointment, was prosecuting war crimes at The Hague.   

While Smith has had his share of successes, including obtaining a conviction of former Republican Congressman Rick Renzi of Arizona (whom Trump later pardoned), he has had his share of failures, too.  Smith led the prosecution against former Democratic Sen. John Edwards of North Carolina, who was also John Kerry’s vice presidential running mate in 2004.  Edwards was subsequently indicted for alleged federal campaign finance violations.  A jury acquitted him of some of the charges and failed to reach a verdict on the remainder.  The Justice Department declined to retry Edwards on those charges.

Smith also led the prosecution of former Virginia Gov. Robert McDonnell, a Republican. McDonnell’s conviction on corruption charges was unanimously overturned by the U.S. Supreme Court, which narrowed the scope of the federal bribery statute.  The Justice Department subsequently dismissed the charges.

Pursuant to Rule 6 of the Federal Rules of Criminal Procedure, a grand jury consists of 16 to 23 average citizens who are legally qualified to sit on a grand jury—meaning, they must be a citizen, at least 18 years of age, and reside in the county where the grand jury sits. At least 12 of those grand jurors must concur that the charges are warranted before an indictment is returned. 

Although the grand jury is meant to stand as a bulwark between someone who is under investigation and the prosecuting authorities, it is rare for a grand jury to reject charges that the government is seeking, which led some to claim that a grand jury would indict a ham sandwich if a prosecutor asked them to, a phrase made famous by author Tom Wolfe in “The Bonfire of the Vanities.”   

Now that he has been indicted, Trump has been summoned to appear at the federal courthouse in Miami on Tuesday afternoon for his initial appearance, at which time he will enter a plea of not guilty and the case will be assigned to a trial judge. (The indictment indicates that the case is assigned, at least temporarily, to Magistrate Judge Bruce Reinhart, who signed the search warrant for Mar-a-Lago, and U.S. District Court Judge Aileen Cannon, who handled legal challenges to the search warrant.) There will also likely be some preliminary discussions about the timing for filing pretrial motions.   

The charges all relate to the classified documents investigation arising out of Mar-a-Lago, not the Jan. 6 investigation, which is still being conducted by Smith’s office.   

‘Speaking Indictment’

The indictment is a “speaking indictment,” which means that in addition to the bare bones charges, the document includes a narrative that lays out some of the facts the government claims to have to justify charging the former president.   

The indictment alleges that the “hundreds of classified documents” that Trump improperly retained “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 foreign attack,” which, if disclosed, “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.” 

It is further alleged that Trump stored boxes containing the classified documents “in various locations at The Mar-a-Lago Club, including in a ballroom, a bathroom, and shower, an office space, his bedroom, and a storage room.” Moreover, it is alleged that on two occasions, he showed classified documents, including a “plan of attack” that was prepared for him by the Defense Department (reports indicate that the potential attack involved Iran) and “a classified map related to a military operation” to individuals who did have the requisite clearances to see such documents. The indictment further alleges that Trump acknowledged on those occasions that he had not declassified the documents and should not be showing them to the individuals in question. 

The indictment goes on to allege that after the FBI opened an investigation into the alleged unlawful retention of the classified material and in response to a grand jury subpoena for the documents, Trump and Nauta endeavored to obstruct that investigation. They allegedly did that by, among other things, making false statements that Trump did not have any responsive documents, moving 64 boxes of documents (captured on surveillance video) to conceal them from his attorneys (who were inspecting them to ensure compliance with the grand jury’s subpoena), the FBI, and the grand jury, and suggesting to his attorney that they hide or destroy the documents, rather than turn them over to the grand jury. 

When the FBI agents executed the search warrant, they found 27 classified documents in Trump’s office and 75 classified documents in a storage room, according to the indictment.  The classification markings were at the Confidential (31), Secret (54), and Top Secret (17) levels. 

• The first 31 counts of the indictment allege that Trump willfully retained “national defense information in violation of the Espionage Act [18 U.S.C. § 793(e) – subject to a potential 10-year prison sentence per count].   

• Count 32 alleges that Trump and Nauta conspired to obstruct justice by concealing records with the intent to impede a federal investigation [18 U.S.C. § 1512(k) – subject to a potential 20-year prison sentence].   

• Count 33 alleges that Trump and Nauta withheld documents from an official proceeding [18 U.S.C. § 1512(b)(2)(A) – subject to a potential 20-year prison sentence].   

• Count 34 alleges that Trump and Nauta attempted to persuade one of Trump’s attorneys to hide and conceal documents from the grand jury, and that they withheld documents from the grand jury [18 U.S.C. § 1512(c)(1) – subject to a potential 20-year prison sentence].   

• Count 35 alleges that Trump and Nauta concealed documents related to a federal investigation [18 U.S.C. § 1519 – subject to a potential 20-year prison sentence].   

• Count 36 alleges that Trump and Nauta engaged in a scheme to conceal information from a federal grand jury [18 U.S.C. § 1001(a)(1) – subject to a potential 20-year prison sentence].  Counts 37 and 38 allege that Trump and Nauta, respectively, made false statements to a federal official about a fact that was material to that official’s investigation [18 U.S.C. § 1001(a)(2) – subject to a potential 20-year prison sentence]. 

These federal charges come on top of the indictment that has already been returned against the former president by Alvin Bragg, the Manhattan district attorney.  There remains the prospect of additional charges being sought by Smith’s office, as well as the possibility that Fani Willis, the district attorney in Fulton County, Georgia, will also file charges sometime in early August against Trump and others in what is rumored to be a broad-ranging indictment.   

Prosecution to Deepen Political Divisions

While these federal charges were not unexpected, this indictment certainly represents a remarkable turn of events.  The deep political divisions that exist in this country, which have become increasingly hostile, will only be further inflamed and widened by this prosecution.   

Large numbers of people believe that the Department of Justice and the Federal Bureau of Investigation have been “weaponized” against Trump and other conservatives.  

This indictment comes on the heels of the report that was recently filed by special counsel John Durham that skewered the FBI for its conduct related to Operation Crossfire Hurricane, the investigation into alleged collusion between the Trump campaign and the Russian government in 2016, which followed from an equally condemnatory report that had been issued by Justice Department Inspector General Michael Horowitz. The fallacious charge and the subsequent investigation by special counsel Robert Mueller bedeviled the Trump administration and damaged the nation’s reputation at home and abroad.   

Critics also point to, among other things, the fact that Hillary Clinton was never charged in connection with the classified information that resided on the server that was installed at the home she shared with former President Bill Clinton in Chappaqua, N.Y.; that President Joe Biden has not been charged with his own possession of classified information at his home and at a think tank where he worked prior to being elected president; and that Hunter Biden has not been charged for any of his foreign dealings that came to light from information contained on his abandoned laptop.

They also cite recent whistleblower allegations that the FBI has been sitting on information about bribes Biden is alleged to have received when he was vice president. 

Regardless, a Rubicon has been crossed.  A former president of these United States has been indicted by the same federal government he once led.

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