Takeaways from Trump indictment in Jack Smith classified docs probe

Andrew Weissmann on “Last Word with Lawrence O’Donnell" moments ago:

At least federally, this is a first for this country. I actually think this is a remarkable, impressive and worthy night for the Justice Department but more importantly for the will of law in this country.

When we were here talking about the Bragg indictment there was a legitimate debate about whether Donald Trump is being treated exactly the way any other defendant would be treated not named Trump. Alvin Bragg tried to deal with that issue. But there’s no question in this case that he is being treated no better or worse than anyone else.

Many people would say he would have been indicted long ago if his name were not Trump. The reason that’s important is when you’re indicting a political figure, it’s not enough that you have a strong case. It’s also important that the public understand that this is not selective persecution. That this is not somebody who’s singled out. That he’s being treated just like anyone else. There are legions of cases of people who did far less who are in jail because of this kind of conduct. 

That is what it means to have a rule of law. That is what it means to not have a king but to have somebody who if they violate the law would be treated regardless of their station or in this case, their former station in government.

Rachel Maddow speaking on "Last Word with Lawrence O'Donnell" moments ago:

Trump getting indicted was an inevitability probably from the time that his father first settled with the Justice Department for not renting apartments to Black people. This is the way his life has been built. 

The thing that changed in our country irrevocably is when the Republican Party put him at the top of their ticket — and they may yet do it again.

That Donald Trump is facing another indictment, this time federal, is no big surprise. As MSNBC legal analyst Lisa Rubin noted earlier this evening, though, one surprise is that the Justice Department is indicting the former president in Florida tonight and not in Washington, D.C. Until recently, it had seemed that the nation’s capital was the most likely venue.

But it seems special counsel Jack Smith has decided not to risk charging Trump in Washington, lest a jury or an appeals court determine that the charges should have been brought quite a bit closer to Mar-a-Lago. In doing so, he may be sidestepping a looming Supreme Court ruling. The case, Smith v. United States, was argued less than three months ago. It concerns whether the government’s failure to prove venue in a case constitutes an acquittal, or if the government can retry that case in another venue. Appeals courts have split on the issue, with the 5th and 8th Circuit Courts on the side of acquittal, and the 6th, 9th, 10th and 11th Circuits on the side of a retrial. 

As Ryan Goodman and MSNBC legal analyst Andrew Weismann wrote earlier this week at Just Security that“regardless of what one might think the law should be, the law is at this moment unsettled.” And though at oral arguments, the justices seemed inclined to agree that a mistaken choice of venue should not prevent retrying in a different venue, it would be foolish to assume that they’ll rule that way. Instead, the Justice Department has taken the more prudent option.

If conspiracy is among the federal charges against Trump, that raises the question: Conspiracy with whom?

Simply put, a conspiracy is an agreement by two or more people to commit a crime. So I’ll be looking for more details on this alleged conspiracy, which we’ll hopefully have at the latest by Tuesday, which is when the indictment may become public in connection with Trump’s court appearance, if not sooner.

Such details needing to be filled in is one of many reasons that legal observers are hoping for what’s known as a speaking indictment, where the prosecution will explain its theory of the case in narrative form, beyond just listing the crimes that Trump allegedly committed. 

Especially if Jack Smith plans on keeping quiet as the case plays out, it will be all the more important for the American people to understand the government’s case — and what it intends to prove against the former president and current candidate.

The first time Trump was indicted, on charges that he falsified business records, Florida Gov. Ron DeSantis slammed Manhattan District Attorney Alvin Bragg, claiming the law was being ”weaponized for political purposes” against the former president.

The second time around, DeSantis is supporting Trump and dismissing the indictment as political weaponization once again.

“We have for years witnessed an uneven application of the law depending upon political affiliation,” DeSantis tweeted. “Why so zealous in pursuing Trump yet so passive about Hillary or Hunter?” The Florida governor and Trump rival for the Republican presidential nomination also promised to “bring accountability to the DOJ,” suggesting he’d want to stack it with political sympathizers.

It’s notable that DeSantis doesn’t see Trump’s legal troubles as a point of weakness in his 2024 rival to pounce upon. Instead, he thinks of it as politically beneficial — or at least politically safer — to stand with Trump against the independent administration of law.

That may be the correct read on where the base stands. But it’s a terrible position for someone who wants to lead a democracy.

One of the federal charges Trump faces is related to the Espionage Act, NBC News has confirmed. That might have you imagining the former president in a fake mustache, speaking in a hushed voice on a burner phone down some South Florida alley.

But such a charge doesn’t mean that prosecutors need to prove that Trump was working with a foreign government. As MSNBC’s Jordan Rubin explained earlier today for Deadline: Legal Blog:

“One part of the act, first passed by Congress during World War I, that could surface in a Trump indictment is 18 USC 793(e). Carrying a 10-year possible sentence, it prohibits people from, among other things, unauthorized possession of national defense-related documents that are willfully retained and not delivered to the government officer or employee entitled to receive them. 

“In Trump’s potential case, the National Archives and Records Administration was entitled to receive the records Trump kept at Mar-a-Lago and failed to deliver. That section of the Espionage Act wouldn’t require Trump, for example, to share the documents with a foreign government in order to be charged.”

Real America’s Voice host Grant Stinchfield tweeted out a video in which he tried to find a positive spin on the indictment, promising it was only going to “empower President Trump, and it most certainly is only going to empower all of us.”

He scoffed at the notion that even a prison sentence would stop Trump, because Trump has the capacity to pardon himself from prison.

That’s true — Trump could do that. Stinchfield’s remarks speak both to the MAGA movement’s nonchalance about rallying behind someone convicted of serious crimes, and to the hard reality that no conviction can be relied upon to stop them.

Be prepared to hear a lot from the Trump camp about how unfair it is that he’s being charged while other prominent figures haven’t been. Look no further than his Truth Social post that broke the news of his own indictment — in that very post, Trump complained about President Joe Biden not similarly being charged.

But as I’ve explained, one of the (many) differences between Trump’s case and situations that haven’t garnered charges can be boiled down to one word: obstruction. That is, Trump seemingly decided to stonewall the investigation instead of cooperating and handing over whatever material the government requested, as Biden has apparently done; likewise, Hillary Clinton, who also avoided charges, apparently cooperated as well.

Indeed, Trump could have taken his cue from a fellow Republican, his former vice president, Mike Pence, who recently learned that he’s not facing charges in his own documents snafu after cooperating with the authorities on the matter. 

Had Trump sought to remedy the situation instead of prolonging it, you might not be reading this post right now.

Joyce Vance speaking on “Alex Wagner Tonight,” moments ago:

Trump will have the tools available to him that any other criminal defendant would have — but really nothing more at this point. Although every judge sets their own pace, Miami, the Southern District of Florida, is known to be a rocket docket. They move cases quickly. This perhaps won’t go as quickly as the 70-some odd days that the Speedy Trial Act allows from the time of arraignment to trial. But this is not a court that tolerates a lot of efforts to slow down its docket. 

So Trump will certainly file preliminary motions trying to get this indictment dismissed. I think we should expect that. He will try to position them so that they can be appealed to the 11th Circuit Court of Appeals in advance of a trial. And there are some issues where you can rightfully take that sort of an appeal and others where you cannot.

But the important thing about the 11th circuit, which is deeply conservative, is that it has already considered the former president’s delayed tactics twice and rejected them. In other words, Trump’s credibility is shot in this circuit. He will have to come in with legitimate legal arguments. To the extent that he does not have them, he will be in serious trouble.