For a second time, Donald J. Trump has been indicted — this time by Special Counsel Jack Smith in the Southern District of Florida Court. Unlike the indictment in New York by D.A. Alvin Bragg, this case has merit.
The 44-page indictment lists 38 counts against the former president but seven charges.
Trump’s admirers should take the indictment seriously because, by Trump’s public admissions, parts of it are true. Other statements he made could prove to be even more consequential and damning.
The critics are not entirely wrong either. The indictment contains plenty of political theater. For those that believe this case holds up because “nobody is above the law,” I have swampland in Florida to sell you.
READ MORE — Andy Bloom: Some people’s First Amendment rights are more equal than others
The Big Picture
When Donald Trump allegedly sought dirt on his political opponent, Joe Biden, the Democratic Congress impeached him. Now we have the DOJ attempting to prosecute the political opponent of President Joe Biden. So, forgive those who think it looks strikingly close to a banana republic.
Biden also had classified documents when he left the Vice President’s residence and others he somehow took as a Senator.
Hillary Clinton’s defenders want to see Trump hang from a gallows pole and claim there is a difference between them. Former FBI Director James Comey testified before a House Committee that they could not prove criminal intent regarding Hillary’s email server. Unless she had reason to believe State Department emails wouldn’t arrive on that server, it’s not a credible statement, but as we learned in the Durham Report, Comey has run cover for Hillary for years. Even that doesn’t account for using BleachBit on hard drives or smashing Blackberries with a hammer.
How Trump Got Himself Into This and How He Could Have Avoided It — At Least Temporarily
Trump never learned the old saying, “Even a fish wouldn’t get in trouble if it kept its mouth shut.”
Trump boasted that he took papers when he left the White House. He said he had every right to possess them under the Presidential Records Act.
That is an unlikely interpretation of the law, but if that’s what Trump believed, he should have gone to the Supreme Court and asked for injunctive relief.
Unsurprisingly, the former president did not listen to his opponent’s DOJ. If he genuinely thought they were wrong, the place to appeal was the Court. Trump didn’t. That suggests he knew he was wrong. That’s when he forfeited the opportunity to stop the Special Counsel, at least temporarily. This indictment is the outcome.
The Theatrics
Section 22 of the indictment contains excerpts from Trump’s 2016 campaign speeches. They don’t prove anything. It’s grandstanding. But, the Special Counsel also uses those speeches to include Hillary Clinton in the indictment, so liberals can’t cry “whataboutism” when the Trump defense brings up the differences in how the DOJ treats Mrs. Clinton and Trump.
The photographs in the indictment are also political theater. The photos show rows of boxes stacked on top of one another. The case is about 102 documents. Everything else in the boxes is irrelevant.
The images don’t show context. One photo shows boxes in a bathroom. Maybe it has a twelve-inch steel door with solid locks. The same people who didn’t care about Hillary’s server in a bathroom or Biden’s documents in a garage are now hysterical about Trump’s boxes in a bathroom.
The indictment makes a big deal about another picture of a box that’s contents spilled over. It shows the front of the Washington Post, Wall Street Journal, and other obscured newspapers, photos that appear to be of Trump, etc., but none that are recognizable as folders stamped with any designation as seen in the FBI’s photo where they spread classified files on the floor.
The Problems
The game of hide-and-go-seek with the boxes isn’t as ominous as the indictment suggests, depending on what was happening with the National Archives negotiations.
More troubling is Trump instructing his lawyer to misrepresent what documents he had and did not have.
It appears the DOJ has been able to puncture attorney-client privilege and coerce one of Trump’s lawyers, M. Evan Corcoran, into becoming a government witness.
The Espionage Act
The case may come down to whether Trump violated a section of the Espionage Act, a WWI-era law that makes it a crime to share national defense information willfully to injure the United States, or for the advantage of a foreign nation or fail to deliver it to an officer or employee of the United States. Of the 102 documents that the indictment claims are classified, it lists 31 relevant to national defense.
The Espionage Act is usually applied to somebody who has deliberately hurt the United States — such as a spy. For example:
- The Rosenbergs were executed after they were found guilty of leaking nuclear secrets to the Soviet Union.
- Edwin Snowden was exiled to Russia for leaking information about government surveillance.
- Private First Class Chelsea Manning was sentenced to 35 years in prison for leaking military secrets to Wikileaks, although President Obama commuted her sentence.
- Former NSA translator Reality Winner was sentenced to more than five years in jail after admitting to leaking a government intelligence report on Russian interference in the 2016 election.
- Wikileaks founder Julian Assange, who is fighting extradition to the U.S., is also charged with violating the Espionage Act.
About half the nation thinks Trump is worse than all the above. The other half don’t see it that way.
The Big Problem
On July 21, 2021, at his Bedminster Club, Trump gave an interview to “a writer and publisher in connection with a then-forthcoming book. Two members of Trump’s staff also attended the interview, which was recorded with Trump’s knowledge and consent.”
In that interview, Trump allegedly shows them something prepared by an individual identified as “the Senior Military Official” from the Defense Department (according to Trump in the interview). It is allegedly an attack plan for a country. At different points in the discussion, Trump says:
“This is off the record.”
“Except it is, like, highly confidential.”
“Secret. This is secret information.”
When one of the staff says “I don’t know, we’ll have to see. Yeah, we’ll have to try to—”
Trump responds, “Declassify it.”
The staffer says, “—figure out a — yeah.”
Trump: “See, as president, I could have declassified it.”
“Now I can’t, you know, but this is still a secret.”
If that’s all true, it’s a big problem because it shows that despite his public statements, Trump knew he had not declassified materials and couldn’t as former president.
Despite what he said about how he could declassify something by merely thinking about it, there is a process for declassification. Trump knew that was the case.
That’s damning, except for one detail. The indictment doesn’t report the classification of the paper Trump showed the writer and the publisher. It’s odd that such a detailed indictment would fail to mention that an attack plan was Top-Secret (an attack plan surely would be). Maybe it is, or perhaps Trump showed them something made up and not an actual government document.
The combination of lying to lawyers and the Bedminster incident make up the strongest parts of the case against Trump. If Trump believed he had a right to the materials, why lie to his lawyer? If he thought the Presidential Records Act allowed him to retain these documents, why not go to the Supreme Court for a ruling? If the Bedminster incident is true, he knew the process to declassify documents.
That could get close to intent.
A Florida jury may find it compelling that the law is not applied equally and disapprove of the grandstanding. If reasonable security measures were taken to protect areas boxes were stored, Jack Smith will look silly.
The second-ever indictment of a former president is not without merit. Charging him under the Espionage Act may be an overreach, however.
It’s always hard to guess what a jury will do. While the Florida case may be stronger than the New York indictment, it wouldn’t be a complete surprise to see a jury in the heavily Democratic New York district come back with a guilty verdict in a case that should be dismissed, while the Florida jury cannot reach a guilty verdict.
Andy Bloom is president of Andy Bloom Communications. He specializes in media training and political communications. He has programmed legendary stations including WIP, WPHT and WYSP/Philadelphia, KLSX, Los Angeles and WCCO Minneapolis. He was Vice President of Programming for Emmis International, Greater Media Inc. and Coleman Research. Andy also served as communications director for Rep. Michael R. Turner (R-Ohio). He can be reached by email at andy@andybloom.com or you can follow him on Twitter @AndyBloomCom.
Why forgive people for thinking that an independent doj appointing a special council to hold the political elite accountable by going through the established legal process resembles a “Banana Republic”?
Offering to cover the legal costs of supporters who assault journalists looks like a banana republic.
Pardoning organized gangs of violent criminal supporters who loot government buildings, tase and beat cops to death, and set up gallows to carry out extrajudicial executions looks like a banana republic.
But this? This looks like law and order.
Good article. “About half the nation thinks Trump is worse than all the above. The other half don’t see it that way.” What specific force do you think is at play that roughly half of us see it one way and the other half see it another way – on a variety of topics? More troubling than roughly half of us falling for the “wrong” propaganda choice of the day (Pepsi or Coke), is that all of us seem to be falling for drinking what is being served (and too much soda is unhealthy no matter the choice.)
You are too nice, and groups such as the far Left rely on normal people’s common manners to implement their agendas. For specific example, you identify former US Army intelligence analyst Manning (born Bradley Edward Manning) as Chelsea. I presume it is because you think it is the polite thing to do. Would you consider the possibility that Manning unwittingly ingested hormones while in custody to be manipulated to seek a sex change, as a form of punishment? Tortured to commit a type of suicide (the term used is dead naming) and required to live with that lifelong punishment? The US federal government has committed worse crimes (Tuskegee experiment is one example.) Sounds preposterous… but most agree on the following reports concerning Manning, and they are equally as preposterous:
“Crazy, almost criminal political back dealings … the non-PR-versions of world events and crises … all kinds of stuff, like everything from the buildup to the Iraq War… to what the actual content of ‘aid packages’ is … There’s so much … it affects everybody on earth … Everywhere there’s a US post … there’s a diplomatic scandal,” wrote Manning in an online chat. Manning’s closest childhood friend described Manning as someone who “loved America.”
Manning was held for several weeks after the May 2010 arrest without being charged with a crime. Without a trial or conviction, Manning was placed in “Maximum Custody,” the military’s most restrictive form of detention. Allowed only one hour of free movement per day, Manning was held at a Marine base in Quantico, Virginia, in what amounted to solitary confinement—without a pillow, blanket or clothing at night—for 10 months. Manning wrote in a letter to an attorney of being subjected to humiliating forced nudity for morning inspection and was harassed by the guards. Manning was not fully charged until March of 2011. Manning’s treatment at Quantico spurred protest worldwide, including a request by a United Nations torture investigator to meet privately with Manning to determine the prisoner’s condition. The request was denied, but Manning was transferred to a military prison in Leavenworth, Kansas, where conditions were less restrictive.
In 2013, Manning pleaded guilty to some of the charges against her and was convicted of others but was acquitted of aiding the enemy.
The day after her sentencing, Manning’s attorney publicly announced that Manning identified as female and chose to be called Chelsea.
In 2017, President Obama commuted Manning’s sentence to her past seven years of confinement, and she was released.
In March 2019, Manning was jailed for contempt and accrued a civil fine of $256,000 for refusing to testify before a grand jury investigating WikiLeaks founder Julian Assange. She was released about a year later, and a crowdfunding effort raised the money to satisfy her fine.