Trump Indictment Part II: What’s Different This Time?
- Oops!Something went wrong.Please try again later.
Donald Trump is now the first former president to be indicted on federal charges, having earlier this year become the first former president to be criminally indicted on state charges. Both cases charge felonies. The New York case could result in prison time if there’s conviction. But in this federal case, incarceration will almost certainly result if there’s a conviction.
Not only are the federal charges more serious than those in New York, the federal sentencing process leaves far less to the discretion of the trial judge. In one of many ironies, back in 1984, Republicans, so incensed by lenient sentencing from liberal judges, led a sweeping overhaul of federal sentencing to make sure criminals actually went to prison. Lol.
The federal indictment was unsealed on the afternoon of June 8th. There are 38 separate counts, 31 of which are related to the alleged unlawful retention of “national defense” secrets, with the remainder charging alleged false statements and cover-ups designed to thwart the investigation. The documents are described generally, for example: “military plans of a foreign country.” We are unlikely to find out any details because they are, well, national defense secrets.
Trump is not charged with violating any laws related to the handling of classified materials. While all national defense secrets are classified, their improper retention is a crime without regard to their classification status. Thus, Trump’s claim of Dr. Stange-ish mind powers of declassification is of no relevance to his defense. Even if Trump did declassify them, he was not permitted to retain them after he left office, or to refuse to return them.
But the fact that this case deals with classified materials means that the Classified Information Procedures Act (CIPA — pronounced “See-Pa” — get used to it) will be used to close certain proceedings to the public — and impose limitations on what the parties and lawyers can say about the evidence. CIPA was designed to insure that federal prosecutions in cases that involved secret information could be conducted without fear that the trial itself would bare the very secrets the government was trying to protect. So many of the most important details of the case are unlikely to ever be made public.
The case will be tried in a federal court in the Southern District of Florida, chosen because most of the conduct alleged to be criminal took place at Mar-a-Lago, rather than Washington, D.C. The grand jury was drawn from the nine counties that make up the district. These include the Biden-voting districts of Broward, Dade, and Palm Beach counties, as well as deep-red counties such as Highlands County, which voted 2-1 for Trump in 2020. The trial jury will be selected from the same group, so it is likely to contain a mix of Democrats and Republicans.
In New York, the pesky liberals reformed the discovery process in criminal cases so the defendant gets access to almost all information in the hands of the prosecution, early in the case. The federal system remains largely trial-by-ambush, where the defendant may not even learn the names of the witnesses against him until shortly before trial. When we hear Trump’s lawyers (and the man himself) bleating about how unfair this system is, keep in mind that they are right — but it is equally unfair to everyone. Republicans have consistently opposed legislation to force more transparency and disclosure in the federal criminal system. Trump himself showed no interest in such reform during his tenure.
The New York case is set for trial in March 2024, but multiple layers of time-consuming appeals are available to drag out final reckoning for years. By contrast, federal criminal proceedings tend to be really fast and appellate review is streamlined. The federal Speedy Trial Act is quite strict and often functions to impose a speedy trial on defendants who really don’t want one. Thus, the federal trial could be concluded before the New York trial, and certainly before Inauguration Day 2025. A president has no power to pardon for convictions under state charges, but has almost unlimited power for federal ones. Can a President Trump pardon himself? Let’s not find out.
More from Rolling Stone
Best of Rolling Stone
