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Former President Trump will be arraigned Tuesday in Miami on 37 felony counts stemming from his handling of classified documents and his alleged efforts to obstruct a federal investigation into them.
According to the indictment, the charges include violations of the Espionage Act, which prohibits the unauthorized possession of national defense-related documents. Trump has denied any wrongdoing and is expected to plead not guilty.
Yahoo News spoke with several legal experts to get answers to some frequently asked questions regarding the case.
How serious are the charges against Trump?
“It's one of the most serious espionage cases in recent memory,” Duncan Levin, a criminal defense attorney and former Manhattan prosecutor, told Yahoo News. “Not only because it’s against a former president, but because the documents are so incredibly sensitive.”
Do the Espionage Act charges mean Trump has been accused of spying?
No. While the 1917 law is meant to prevent insubordination by members of the military and to prohibit the sharing of state secrets, that does not mean the U.S. government thinks Trump is a spy. “[The charges allege] you had this stuff, you needed to give it back, you retained it, and then you showed it to people who were unauthorized to see it,” New York criminal defense lawyer Andrew Bernstein explained. “No one’s saying you did it to be a spy.”
How damaging are the photos of classified documents kept in a Mar-a-Lago bathroom to Trump’s defense?
“Are they powerful at this moment to say here's the basis for an allegation? Absolutely,” Bernstein said. “Whether they're powerful enough to lead to conviction, or they really mean what the government says they mean, we’re not going to know that until we get the underlying context.”
Do we know why Trump allegedly took the documents from the White House?
“The simple answer is no,” Bernstein said. “The federal government is under no obligation to prove motive.”
What are some of the challenges prosecutors face in the case?
“There is an added layer of complexity when you are charging based on classified documents,” said Christine Adams, a former federal prosecutor and partner at Los Angeles-based Adams, Duerk & Kamenstein. “You have to prove that the government has taken steps to protect the information, that it relates to national defense and that its unauthorized disclosure could potentially harm the United States. How do you do that without disclosing classified information?”
How serious is this case compared to Manhattan District Attorney Alvin Bragg’s hush money probe against Trump in New York?
“Federal indictments are always much more serious,” Bernstein said. “It’s the United States of America versus an individual.”
“DOJ chose to tell a compelling, detailed story through the indictment, likely in an effort to convince at least some members of the public that this case is not politically motivated," Adams said. "The New York case is much more mysterious in that prosecutors there have told a less detailed story of what Trump is alleged to have done, and they even have referred to an underlying crime without exactly identifying what the crime is."
What is the maximum prison time Trump could face?
If Trump is convicted of all 37 counts, the former president could face a total of 400 years in prison, based on the maximum sentences for each charge:
Counts 1-31: Willful retention of national defense information - 10 years
Count 32: Conspiracy to obstruct justice - 20 years
Count 33: Withholding of a document or record - 20 years
Count 34: Corruptly concealing a document or record - 20 years
Count 35: Concealing a document in a federal investigation - 20 years
Count 36: Scheme to conceal - 5 years
Count 37: False statements and representations - 5 years
But should Trump really worry about going to prison?
“If he were my client and he asked me that, the answer is, ’Absolutely,’” Bernstein said.
If Trump does go to jail, don’t expect him to get anywhere near the maximum sentence.
“You always read about a maximum term and it’s mind boggling," said Richard A Serafini, a former senior trial attorney in the Justice Department's Criminal Division and a criminal defense attorney based in South Florida. "In reality, the sentences wind up being much, much less.”
When could the case go to trial?
“The federal law, called the Speedy Trial Act, requires the government to bring the case to trial within 70 days. But that typically doesn’t happen,” Serafini said. “I’m certain that the Trump team is going to file motions.”
And Trump has a long history of delay tactics when it comes to litigation.
“If they think it’s advantageous to delay as long as possible until after the election, then they may well try and do that,” Serafini said.
If Trump wins reelection before the trial begins, could he simply tell his attorney general to drop the case?
“I suspect that's exactly what he would try and do and potentially be successful,” Serafini said. “I mean, I suspect if he wins the election, the first question he would ask his prospective attorney general is, ‘Are you going to drop the charges?’”
“We're in quite theoretical territory,” Levin said, “but I think we're in a situation where he either gets elected president or goes to jail.”
Let’s say Trump is tried and convicted before the election. Could he still somehow serve as president?
There is nothing in the Constitution that would bar Trump from running his campaign, or serving as president if he was convicted.