Justice Department will ‘go for incarceration’ if Trump is convicted in classified papers case, lawyer says

The Department of Justice is likely to attempt to have former President Donald Trump incarcerated if he’s convicted following the indictment laying out 37 charges against him in relation to his handling of classified national defence information.

National security lawyer and George Washington University law professor Kel McClanahan said that the department will probably “want to go for incarceration” in the case of Mr Trump, according to Insider.

Mr McClanahan said that the evidence in the indictment that was unsealed on Friday afternoon is intended to show that Mr Trump “is a kingpin who knowingly broke the law, endangered national security, endangered nuclear weapon security, [and] endangered other countries’ national security”.

The charges include 31 counts of “willful retention” of documents under the Espionage Act.

The consensus among most legal experts commenting on the indictment appears to be that Mr Trump is in serious legal jeopardy.

If Mr Trump is convicted, he could be sentenced to decades in prison.

A former assistant US attorney in the Southern District of New York, Sarah Krissoff, told Insider that “to the extent that there’s a conviction here, the Department of Justice is going to want to be seeking a real sentence” because of the “nature of the conduct, how long it lasted, his involvement, the involvement of other people, working allegedly at Trump’s direction”.

She noted that if Mr Trump is convicted, the sentence would depend on the judge, which seems likely to be Trump-appointee Aileen Cannon in the District Court for the Southern District of Florida.

Mr McClanahan noted the novelty of possibly having to find a proper way to put a former president behind bars.

He questioned how the authorities would go about imprisoning someone “who has a Secret Service detail and who has national security secrets bouncing around his brain, such that if someone holds a shiv to his neck, he’ll reveal the location of our missile bases”.

He added that Mr Trump might become a “foreign intelligence gold mine for most countries on earth” if he’s imprisoned. Mr McClanahan sees it as more likely that if Mr Trump is convicted, he would be sentenced to house arrest with an ankle monitor.

But Ms Krissoff told the outlet that “Trump can share that information that is in his head whether he is incarcerated or not incarcerated. So I’m not particularly concerned that, as a citizen, the incarceration will trigger the sharing of information that wouldn’t be shared otherwise”.

Fox News legal commentator Jonathan Turley didn’t hold back after the indictment was unsealed.

Mr Trump showed classified documents to others twice in 2021, the legal filing states.

Mr Turley, the Shapiro Chair of Public Interest Law at George Washington University, said on Fox News on Friday afternoon that “it is an extremely damning indictment”.

“There are indictments that are sometimes called narrative or speaking indictments. These are indictments that are really meant to make a point as to the depth of the evidence, there are some indictments that are just bare bones,” he added.

This is not one of those indictments, Mr Turley said.

“The Special Counsel knew that there would be a lot of people who were going to allege that the Department of Justice was acting in a biased or politically motivated way. This is clearly an indictment that was drafted to answer those questions. It’s overwhelming in detail,” he continued. “The Trump team should not fool itself. These are hits below the waterline. These are witnesses who apparently testified under oath [and] gave statements to federal investigators, both of which can be criminally charged, if they’re false.”

“Those witnesses are directly quoting the president in encouraging others not to look for documents or allegedly to conceal them. It’s damaging,” Mr Turley said.

“This is not an indictment that you can dismiss. There are a lot of people who are testifying under oath, and they’re saying highly incriminating things,” the attorney added.

Speaking about the images from Mar-a-Lago of the boxes of documents found in a ballroom and a bathroom, in addition to other less-than-ideal places, Mr Turley said, “It’s really breathtaking. Obviously, this is mishandling. Putting the classified documents into ballrooms and bathrooms borders on the bizarre. And these are the types of pictures that hit you below the waterline in a trial.

“It’s hard to show a picture of these boxes surrounding a toilet and saying ‘we really acted responsibly,’” he added, going on to note that “the government is bringing dozens of counts – they only have to land one of those punches”.

“Keep in mind that every one of these counts is coming with a substantial potential sentence,” Mr Turley said.

The lawyer said that the Trump legal team has “to run the table, they have to take out every single count, or you’ve got a 76-year-old man looking at a potentially terminal sentence”.