Jun 12, 2023

The Trump indictment.

Image via National Archives
Image via National Archives 

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I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's topic.

The Trump indictment. We're skipping today's reader question to give our main story some extra space. 

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Quick hits.

  1. Ukraine claims it is making small gains in its long-awaited counteroffensive, saying it took two villages in the Russia-occupied Donetsk region on Sunday. (The reports)
  2. Televangelist and former GOP presidential candidate Pat Robertson died at age 93 in his home in Virginia Beach. (The death)
  3. North Carolina's GOP voted to censure Sen. Thom Tillis (R) for departing from the party's platform after he voted for bipartisan legislation on issues including gun control and LGBTQ rights. (The censure)
  4. Fox News sent a cease-and-desist letter to Tucker Carlson alleging contract violation over his new show "Tucker on Twitter," which drew a combined 169 million views in its first two episodes. (The letter)
  5. Ted Kaczynski, known as the Unabomber, died in a North Carolina prison on Saturday at the age of 81. (The death)

Today's topic.

The Trump indictment. On Friday afternoon, former President Donald Trump's indictment was unsealed. The Department of Justice has charged Trump with 37 counts of seven different charges, including willfully retaining national defense information, withholding classified records, making false statements to investigators, and conspiracy to obstruct. Walt Nauta, a military veteran and aide to Trump who worked at Mar-a-Lago, was also charged on five counts and a separate false statements charge.

Special Counsel Jack Smith, who is leading the investigation, has been interviewing aides to the former president and workers at Mar-a-Lago for months.

“I invite everyone to read [the indictment] in full to understand the scope and the gravity of the crimes charged,” Smith said Friday. “We have one set of laws in this country, and they apply to everyone.”

The indictment alleges Trump was holding onto classified documents related to “defense and weapons capabilities of the U.S. and foreign countries, United States nuclear programs, potential vulnerabilities of the U.S. and its allies to military attack, and even plans for possible retaliation to a foreign attack.”

You can read the indictment here. You can read our initial coverage of Trump being indicted, and my initial reactions, here.

Trump has denied any wrongdoing in the case, calling it a witch hunt and assuring supporters he will be vindicated in court.

This investigation started with a dispute between Trump and the National Archives, which retrieved 15 boxes of documents from Mar-a-Lago that should have been transferred to the archives when Trump left the White House. After discovering more than 100 classified documents in the boxes, the archives alerted the Justice Department, which subpoenaed Trump for more documents. Trump’s representative told the department that he had turned all of them over. However, the FBI obtained evidence that more documents were at the property, executed a search warrant, and recovered over one hundred more.

In the indictment, Trump is accused of sharing classified information with individuals who did not have classified clearance, including a writer, publisher, and two staff members who sat with him for an interview for a forthcoming book. In the recorded interview, Trump described a secret plan to attack Iran purportedly compiled by a high-ranking military general.

“Isn’t that amazing?” Trump asked the group, adding: “Except it is like, highly confidential.” Trump told the group he could have declassified the documents as president, but now he couldn't. “This is still a secret,” he allegedly says in the recording.

The indictment also alleges that Trump instructed staff and lawyers to move boxes of classified documents to obscure them from investigators, and instructed one lawyer to remove any classified documents he might have found. In one case, Trump and Nauta are alleged to have deceived one of Trump's own lawyers by removing document boxes from a storage area at Mar-a-Lago before the lawyer searched the area for subpoenaed records.

Trump's case has been initially assigned to Judge Aileen Cannon in the Southern District of Florida. Cannon was appointed by Trump in 2020 and sparked some controversy after she approved a request last year from the Trump legal team to appoint a special master to review documents the FBI seized at Mar-a-Lago. Her ruling was later overturned by an appeals court.

On Friday, Trump made changes to his legal team after Jim Trusty and John Rowley stepped down. Former prosecutor Todd Blanche will now be leading his defense.

Today, we're going to take a look at some reactions to the indictment from the right and left, then my take.

What the right is saying.

  • Many on the right are skeptical about the indictment, arguing that it represents a double standard and that it wasn't necessary.
  • Some say the indictment is going to do serious damage to the country and unleash lasting political repercussions.
  • Others argue Trump left the Justice Department no choice, and the indictment was necessary.

In The Federalist, Tristan Justice said the indictment is proof of a two-tiered justice system.

"Attorney General Merrick Garland, whose 2016 Supreme Court nomination was thwarted by Trump’s triumphant victory, personally signed off on the anti-Trump persecution," Justice said. Meanwhile, "At least five tranches of documents marked classified from Biden’s time as vice president were found in his possession across multiple locations around the country." The media was "hysterical over the Biden administration’s dramatic raid of Mar-a-Lago," but news of classified information improperly in Biden’s hands was "slowly reported in the press weeks after the records’ discovery. And while Trump’s records were discovered in the former president’s heavily guarded Florida residence, Biden’s documents were found all over the place."

The corporate media have sought to protect Biden by highlighting every possible difference, except the key one: "President Trump had the unilateral power to declassify anything he wanted. Neither Vice President Biden nor Sen. Biden did." All the while, "Clinton is still lying about her emails scandal, in which she used a private server to communicate classified information as secretary of state and got away with it. Biden can simply do the same."

The Wall Street Journal editorial board said that "for the first time in U.S. history, the prosecutorial power of the federal government has been used against a former President who is also running against the sitting President."

"This is far graver than the previous indictment by a rogue New York prosecutor, and it will roil the 2024 election and U.S. politics for years to come," the board said. It is "striking" and "legally notable" that the indictment never mentions the Presidential Records Act (PRA), which "allows a President access to documents, both classified and unclassified, once he leaves office... The indictment assumes that Mr. Trump had no right to take any classified documents," the board said, which doesn't fit the spirit or letter of the PRA. "If the Espionage Act means Presidents can’t retain any classified documents, then the PRA is all but meaningless. This will be part of Mr. Trump’s defense."

As usual, Trump is his own worst enemy, and the indictment details obstruction charges. But "if prosecutors think that this will absolve them" in the court of public opinion, "they fail to understand what they’ve unleashed." How about the basement email server that Hillary Clinton used? "FBI director James Comey said in 2016 that she and her colleagues 'were extremely careless in their handling of very sensitive, highly classified information.” The special counsel “could have finished his investigation with a report detailing the extent of Mr. Trump’s recklessness and explained what secrets it could have exposed. Instead the Justice Department has taken a perilous path.”

In The New York Times, David French said Trump's conduct was "too brazen not to charge."

"The indictment is devastating, and the details are shocking," French said. The indictment contains "extraordinary details" that make it clear Trump possessed truly consequential national secrets, including some regarding our nuclear weapons and military capabilities. "Second, Trump’s storage methods were remarkably sloppy and insecure. The indictment includes a vivid photograph of a pile of boxes on a Mar-a-Lago stage, a ballroom where 'events and gatherings took place.' Another picture shows 'boxes fallen and their contents spilled onto the floor.' One of the spilled documents was plainly and clearly classified."

The indictment also alleges "Trump proudly and knowingly shared classified information with guests who did not possess security clearances, including sharing a military plan for a possible attack against a foreign country," French said. "This level of misconduct should shock every American conscience. It is simply impossible to conceive of any other American engaging in similar misconduct without facing charges. Indeed, given what we know now, not charging Trump under these facts would be an immense scandal, an abject failure of the rule of law."

What the left is saying.

  • Many on the left support the indictment, arguing that Trump can no longer be trusted with the nation’s secrets.
  • Some say the indictment makes it clear Trump broke the law and needs to be held accountable.
  • Others say the indictment is worse than even they imagined.

The New York Times editorial board said that Trump should not "be trusted with the nation's secrets."

"It is hard to overstate the gravity" of Trump's indictment, the board said. "For the first time, a former president has been charged with violating federal laws," a former chief executive has been accused of "obstructing the very agencies he led," and a former commander in chief "has been charged with endangering national security by violating the Espionage Act." Though Republicans are "already trying to politicize the indictment," the evidence is "so substantial that it is clear the Justice Department had no choice but to indict."

"What makes the spectacle all the more stunning is that it was entirely unnecessary. Had Mr. Trump responded to the many formal requests to return the wrongfully taken documents by apologizing and handing them over immediately, he would have avoided any confrontation with federal law enforcement," the board said. And though Mr. Trump's behavior has often been described as "unprecedented," the reaction to that behavior is not. "The United States has prosecuted dozens of former governors, cabinet members and lawmakers. These prosecutions are essential in reaffirming the principle that no one — and especially no political leader — is above the law."

In The Atlantic, David A. Graham said the indictment detailed "the stupidest crimes imaginable."

"We knew it would be bad. Even so, it’s bracing just how bad the evidence laid out by the Justice Department against Donald Trump is," Graham said. "An indictment is not a conviction—it’s a set of allegations by prosecutors, without rebuttal from the defendant. Trump is innocent in court until proven guilty, and has loudly and insistently proclaimed that he is an innocent man. But the evidence included shows why the case against Trump is so disturbing, and why it will be tough for him to defend."

In particular, Special Counsel Jack Smith hits a few key points: "First, that Trump handled the classified material exceptionally sloppily and haphazardly, including stashing documents in a shower, a bedroom, and—as depicted in a striking photo—onstage in a ballroom that frequently held events,” Graham said. "Second, that Trump was personally involved in discussions about the documents, and in directing their repeated relocation. Third, that Trump was well aware of both the laws around classified documents and the fact that these particular documents were not declassified. Fourth, that Trump was personally involved in schemes to hide the documents not only from the federal government but even from his own attorneys. The indictment carefully lays out its case with pictures, texts, and surveillance footage."

In The New Republic, Matt Ford said the indictment "is even more damning than expected."

It "depicts a former president who illicitly kept troves of the nation’s most guarded secrets, took almost no steps to safeguard them, occasionally showed them to random people, and lied to the government about returning them," Ford wrote. In one incident, the indictment details a spilled box leaving documents on the floor, including one with a "visible classification" marker. "In at least two instances, prosecutors said, Trump showed the materials in his possession to people not cleared to view them."

"Prosecutors also relied on notes by one of Trump’s lawyers to show that he intentionally sought to conceal the boxes of documents from a grand jury after it subpoenaed him in May 2022," Ford said. The lawyer's notes paraphrase Trump suggesting they tell the FBI they just don't have anything here. "Trump developed a reputation for evading accountability for his actions over the years. Friday’s indictment will test that ability to its limits."

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

  • Trump left the Department of Justice little choice.
  • Trump’s actions meet the standard set by Comey in the Clinton case.
  • The precedent is dangerous and scary, but I still prefer a world where we charge powerful people with crimes rather than grant them immunity.

Here's where we sit: By early 2025, Trump could be president or he could be in jail. And right now, it's honestly hard to tell which is more likely.

I shared my first reactions to the news of the indictment on Friday morning, before the actual indictment was released on Friday afternoon, and minutes before I appeared on the Lost Debate podcast. As I told host Ravi Gupta when he read me the indictment in real time, and before I had a chance to read it myself: This is the worst-case scenario for Trump. The indictment represents, in effect, everything Trump's allies insisted it would not.

Remember: Trump initially claimed he was cooperating, then said evidence (of classified documents) was planted, then conceded maybe there were classified documents, but he declassified everything. The talking point a few months ago was that the documents were going to be benign things like letters from foreign leaders — effectively, mementos Trump wanted to keep. Then we were told that, well, if classified documents existed, at least the documents were securely locked away in Mar-a-Lago, protected by secret service agents.

Now that we have the indictment, we can cross those arguments off. Nuclear and military secrets among the documents? Check. Knew the documents were classified, and confessed he hadn't declassified them? Check. Instructed lawyers to lie and conceal the documents' existence? Check. Showed off classified information to people without clearance? Check. Kept them in insecure locations? Check.

The indictment appears credible, and the Justice Department's minute detail assures they have a strong case with mountains of evidence (including texts, photographs, surveillance footage, testimony, and recordings). But we should be careful not to presume guilt. Trump is innocent until he’s proven guilty, and we only have partial information from one side — Trump hasn't outlined his legal defense yet.

But what we can do is look at the indictment and determine whether it was necessary, then look at the arguments against it and determine whether they hold water.

To me, the answer to the first question is yes, the indictment was necessary. The best argument against indicting Trump came, in my opinion, from The Wall Street Journal editorial board. They essentially made the case (under "What the right is saying") that it would have been better to present the evidence of Trump's guilt and let the public be the judge, rather than thumb the scale heading into an election. Their argument was that there was a way to make this damning for Trump without pitting Biden's Justice Department vs. his top political foe, a dangerous and unprecedented political tinder box. Fair.

What's not said is the implication of that. It would mean, essentially, that there is pretty much no classified documents crime egregious enough to warrant prosecuting a former president or high-ranking official. "However cavalier he was with classified files, Mr. Trump did not accept a bribe or betray secrets to Russia," the board said. Is that the standard? That a president can only be charged if he's found selling state secrets to Russia post-presidency? No thank you. Not in a country where people spend years and years in prison for markedly less than what Trump did.

There are also allegations of a double standard here, mostly concerning Hillary Clinton's use of a private email server. When then-FBI Director James Comey opted not to prosecute her, this is what he said: “All the cases prosecuted involved some combination of clearly intentional and willful mishandling of classified information or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct or indications of disloyalty to the United States or efforts to obstruct justice.”

As lawyer and conservative columnist David French noted (under "What the right is saying"), this is the "Comey test." This was the standard he set. Based on the indictment, the allegations against Trump very obviously meet that standard. The Justice Department is alleging his conduct was willful and that he obstructed justice.This was also the standard Trump himself set. Nobody is really talking about this for some reason, but please remember that Trump spent his entire 2016 campaign demanding Clinton go to jail for her email server. "Lock her up" became a rallying cry at his campaign rallies, and some of Trump's own quotes about the need to protect classified information were helpfully collected in the indictment (again, this was a cornerstone of his 2016 campaign):

A screenshot of the indictment.
A screenshot of the indictment.

So, do the arguments against the indictment hold water?

Many Trump allies say that prosecuting Trump will make us a "banana republic." But the rest of the democratic world is actually much better at holding its leaders accountable than we are. If anything, there is a better argument that both Clinton and Trump should have been prosecuted than that Trump shouldn’t be prosecuted because Clinton wasn’t. France, South Korea, Israel, and Italy have all prosecuted former leaders for alleged crimes. Just this weekend, Scotland arrested its former leader Nicola Sturgeon for financial crimes. Why shouldn't we hold our leaders accountable?

Ultimately, that's the question I keep coming back to. As I wrote on Friday, I'm having a hard time shaking the argument that we'd be a better country, not a worse one, if we actually held all our leaders accountable for purported crimes. Imagine you have an option to choose between two worlds: In World One, investigating and charging current or former presidents with criminal activity is too politically fraught, and is therefore avoided at all costs. In World Two, the Trumps, Clintons, Bushes, and, yes, even Bidens are all actually investigated in earnest for any credible allegations of criminal activity. I would pick World Two every time.

It's also worth saying what distinguishes this investigation of Trump from past ones. Former Attorney General Bill Barr put it best in an appearance on Fox News. Like me, Barr was skeptical of Alvin Bragg's indictment of Trump. Like me, Barr has been critical of the investigation into Russian collusion. And like me, Barr does not see any similarities between those investigations and this indictment.

"This idea of presenting Trump as a victim of a witch hunt is ridiculous. Yes, he's been a victim in the past. Yes, his adversaries have obsessively pursued him with phony claims,” Barr said. “But this is much different."

As Barr noted, the documents’ degree of sensitivity was shocking, and Trump could have avoided all of this by simply returning them. Instead, he appears to have obstructed, lied to, and misled investigators over and over. Yes, we have to wait to see what the defense says, but as Barr also said: "If even half of it is true, then he's toast."

What will happen now? It's anyone's guess. A lot of people on the left are expressing consternation that the case is going before a Trump-appointed judge in Florida, and even that it will be taken up in Florida at all, where a jury is much more likely to include Trump diehards.

I actually had the opposite reaction: I think this is the best venue for the case. It will be better for the country, in the case of a guilty verdict, that there is no doubt about the setting, and the best way to assure that is for the case to be decided by a judge and jury that the public at large doesn’t believe are biased against Trump. I have no desire to see Trump, a 78-year-old former president, go to jail, and am hopeful the prosecution will pursue sentencing with discretion if he’s found guilty. But it is totally reasonable to prosecute him for what appears to be egregious and unbelievably negligent behavior. Trump has nobody to blame for his actions and decisions here but himself, and we should set the standard, for our future leaders, that this conduct is unacceptable.

New video.

A couple weeks ago, I sat down with Michael Dorf and Neil Buchanan in our first-ever Tangle YouTube interview to talk about the debt ceiling, its legality, and whether Biden could simply ignore it in the future. This was one of the most interesting conversations I've had about the debt ceiling, and I encourage you to give it a watch:

Your questions, answered.

We're skipping today's reader question to give our main story some extra room to breathe.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.

Under the radar.

(Literally). China has reportedly been operating an espionage base in Cuba since 2019, Biden officials said. On Thursday, the Wall Street Journal reported that China had struck a secret agreement with Cuba, just 100 miles off the coast of Florida, to build an electronic eavesdropping facility on the island. The Biden administration initially said the report was inaccurate, but later clarified that it had "inherited" the problem, and was contesting the idea the surveillance operation was build on its watch. The base will allow Chinese intelligence services to pick up electronic communications throughout the southeastern U.S., where many military bases are located. The Wall Street Journal has the story (paywall).


  • 48%. The percentage of Americans who think former President Trump should have been indicted for mishandling classified documents, according to an ABC News poll.
  • 35%. The percentage who think he should not have been.
  • 17%. The percentage who said they did not know.
  • 80%. The percentage of likely GOP voters who say Trump should still be able to be president if he is convicted on the classified documents charge, according to CBS News.
  • 38%. The percentage of likely GOP primary voters who said it is a national security risk if Trump kept classified nuclear and military documents, according to CBS News.
  • 80%. The percentage of the rest of the country who said it is a national security risk if Trump kept classified nuclear and military documents, according to CBS News.

The extras.

  • One year ago today we didn't have a newsletter, but we had just published a subscribers-only post exploring the ethics of having kids.
  • The most clicked link in Thursday's newsletter was the Alabama Supreme Court case.
  • 8th Place: That's where Donald Trump is polling among Tangle readers. In a surprising result to our poll, where we asked readers whom they would vote for if they *had* to vote in the Republican primary, Tim Scott won the plurality of the vote with 27%. Ron DeSantis won 18%, Chris Christie won 12%, Nikki Haley won 12%, Mike Pence won 11%, Asa Hutchinson won 6%, Vivek Ramaswamy won 4%, Donald Trump won 4%, and Doug Burgum won 1%. 6% wrote in for someone else. Over 700 of the 857 responses came before news broke of Trump's indictment.
  • Nothing to do with politics: Connor McGregor KO's the Miami Heat mascot. Actually.
  • Take the poll. Do you think the Department of Justice should have indicted Trump? Let us know!

Have a nice day.

A new alliance between a southern African ethnic group and an international conservation organization is helping to save wildcat populations in Zambia. In 2019, the Barotse Royal Establishment of the Lozi People and the wildcat conservation group Panthera founded an initiative called "Saving Spots," which aims to preserve both the traditions of the Lozi people and Zambian wildcat populations by substituting ceremonial furs with synthetics. The faux furs were developed by Panthera with the endorsement of the Lozi king, who knew leopard and serval populations were dwindling. Gareth Whittington-Jones, the counter wildlife crime Southern Africa regional coordinator for Panthera, says the conservation effort "certainly wouldn't have been possible without the visionary approach" of the Lozi leaders. Leopard populations are now on the rise in Zambia. The Week has the story.

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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.