Takeaways from Trump indictment in Jack Smith classified docs probe

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.

Trump is poised for a busy trial schedule next year.

He already has the New York state trial, set for next March in Manhattan, in his hush money case. That’s about a year from his indictment there, which is a good rule of thumb for how long a case can generally take from being charged to getting to a jury (if it goes to trial, that is; most cases end with plea deals). So if that rough schedule holds, the front-runner for the Republican presidential nomination could be tried in federal court in the federal documents case about a year from now as well, just months before the presidential election.

Of course, anyone who has tried or followed cases knows that anything can happen with trial scheduling. Hardly anything is set in stone. But there’s also the ticking clock against the backdrop of that election, especially if Trump appears poised to take the White House again. Plus, these two indictments could be joined by two more, with another federal investigation regarding Jan. 6, and another state investigation in Georgia into possible election interference, still in the works. The former president should keep his calendar clear.

Andrew Weissmann speaking on “All in With Chris Hayes,” moments ago:

The courts, as sort of the last best hope for democracy, are going to be under enormous pressure. We’ve seen that with respect to Alvin Bragg and the threats to him and his family, with respect to the state court judge and his family.

We’re going to see the same thing happen at a federal level. I suspect we’re going to see additional indictments and it is going to be a test of our democracy — and particularly the courts — as to whether they are going to have the fortitude and also the acceptance by the American public that we are a country of laws, not men. This is such a defining moment and unique for our country to be in this position after hundreds of years.

Former Attorney General Eric Holder speaking on “All in With Chris Hayes,” moments ago:

Given the strength of the case as I know it, I suspect there would be a real attempt on the part of the defense to try to cut a deal, such that you would minimize the amount of time that the defendant would serve in jail, the amount of money that he might have to pay.

Donald Trump is a different kind of bird. He will undoubtedly try to portray this as the deep state getting after him, he will somehow try to tie it to Democrats’ attempt to deny him the nomination and ultimately the presidency once again. But I think people have underestimated how the American people are going to view this indictment and then others that are to follow, including the one in Manhattan that has already been returned — how they’re going to view the totality of these charges against Mr. Trump and the impact it’s going to have on his political fortunes.

NBC News has new details about the seven charges against the former president: "Two sources briefed on the seven charges told NBC News the charges include false statements and conspiracy to obstruct. All charges are related to retaining documents and obstructing justice."

One source notes that seven charges doesn’t necessarily mean seven counts, because there can be multiple counts associated with each charge.

A familiar dynamic is already beginning to play out: Republicans are swiftly rallying around former President Donald Trump before they even know what he’s been charged with, or what exact evidence has been used to make the case for those charges. Sen. Josh Hawley of Missouri tweeted, “If the people in power can jail their political opponents at will, we don’t have a republic.” (Trump has been indicted — he hasn’t been convicted, or given a jail sentence.) Rep. Troy Nehls of Texas said the indictment was proof that the U.S. is a “banana republic.”

The House Judiciary Committee — of “Kanye. Elon. Trump.” fame — tweeted out “WITCH HUNT.” And Rep. Jim Jordan of Ohio, proclaimed it a “sad day for America.”

Of course one of the strongest indications that a country is a nation of laws is that a former president could be indicted. The worrisome thing would be if the indictment was based on nonsense — or if Trump were not indicted in spite of the evidence. But there is plenty of evidence that Trump handled classified documents inappropriately, and one has to know the details of the case before dismissing it. 

Contrast the Republican response with the measured response from the Biden administration: A White House spokesman declined to comment on former President Trump’s latest indictment, referring NBC News to the Department of Justice, “which conducts its criminal investigations independently.”

MSNBC legal analyst Joyce Vance, a former federal prosecutor, makes a great point when she calls for new rules that will allow the public to see what happens to Trump in court. 

As she tweeted, “​​Chief Justice Roberts should immediately amend the rules to permit cameras in federal courts. The American public is entitled to watch the proceedings against Trump in their entirety. Anything less would be an injustice.”

That point can’t be overstated. Now that Trump has been indicted by a federal grand jury, the American public is owed transparency and access to the proceedings. Any rule that would block that access needs to be changed.

There may be a temptation to forget about Trump’s already pending state case now that he has a federal case that’s seemingly more serious. I understand the temptation, but here’s something to keep in mind: If Trump is re-elected, that could quickly blow up any federal case (or cases) against him — whether that’s by him ruthlessly seizing control over the Justice Department that would be prosecuting him, the DOJ’s long-standing policy against charging sitting presidents, Trump attempting to pardon himself, or some combination of all of these elements. 

So while we haven’t even seen the details of these documents-related charges yet, and they might even be Trump’s only federal ones with the Jan. 6 probe still pending, keep in mind that Trump — or any president — wouldn’t have the same control over state charges, whether in the pending New York case or any Georgia charges that come.

Lisa Rubin speaking to Chris Hayes on “All in With Chris Hayes,” moments ago:

I'm sitting in a hotel room in Miami, and if you had asked me where I'd be when Donald Trump was indicted by the federal government, it certainly wouldn't have been here. As early as early this week, we fully expected this would happen in Washington D.C., if at all. The fact that it's happening in Miami, and we have all so quickly had to adjust about where and why Miami is part of what has so many people out there scratching their heads not only about this historic moment, but where exactly it's occurring and why.

We don't know a lot, Chris, about when this shift happened. There's been public reporting that indicated that while folks like you and me weren't watching, this grand jury in Miami was convened last month and heard from a variety of witnesses before we were here earlier this week to track down Taylor Budowich, Trump's former spokesperson, when he arrived with his lawyer, Stanley Woodward. Certainly no public attention was focused on this courthouse, and that may be why the Department of Justice chose Miami over other places, for example, in the Southern District of Florida.

But that sort of jumps over the predecessor question, which is: why Florida at all? And Department of Justice policy generally holds that you charge a crime where the bulk of the conduct occurs. And nowhere is that more true than where obstruction is concerned, where there's also some case law in D.C. that would trend in that direction. And I think one other factor for Jack Smith and his team was: even though the jury pool in D.C. would have been more favorable to them, by far, and the judges on the whole are viewed as more favorable to the special counsel, you also have to weigh that against the certainty of making the right decision on venue. Because if you make the wrong decision, and either you get a conviction and it's reversed on appeal, or the defendant moves to dismiss the indictment on the basis of erroneous venue, you can't start over.

Surprising basically nobody, the Trump team is already trying to make a buck off of the criminal charges against him. Just after 7:30 p.m. ET, an email hit supporters’ inboxes claiming that we “are watching our Republic DIE before our very eyes.”

“This is nothing but a disgusting act of Election Interference by the ruling party to ELIMINATE its opposition and amass total control over our country,” the email continued, crowing about the amount of funds that had been raised off of Trump’s indictment in New York in April.

And to be fair, they have a point: The Trump campaign said it raised $15.4 million after the New York charges were filed. That’s almost as much as it raised in the first quarter of the year in total. It turns out (alleged) criminality is lucrative.

Trump has been a national security question slash threat since the day he was sworn in. And this feels like something that just finally caught up with him.

The crimes were too blatant, they were too flagrant, he did it in front of too many people, and it appears he is now — after a very, very long period of time of disregarding, disrespecting and violating all of the norms — crossed some lines and, at least according to Jack Smith and his investigators, committed crimes that Smith believes he can prove beyond a reasonable doubt.

Nicolle Wallace on "The Reidout with Joy Reid," moments ago.

In his social media post announcing he's been indicted, Trump says, “I never thought it possible that such a thing could happen to a former President of the United States, who received far more votes than any sitting President in the History of our Country….” (Trump’s boast about the number of 2020 votes he got never mentions that Joe Biden got 7 million more.)

That line might come across as Trump trying to distract people away from today’s news, but I’m convinced he really believes his popularity is supposed to protect him from any consequences. As has often been attributed to John Adams, the country’s second president, we are a nation of laws, not of men. But Trump seems to truly believe that who he his and how many people like him should determine whether he gets charged with a crime.

The scope of the indictment against Trump is becoming clearer. NBC News reports, citing Trump's lawyer, that the indictment against the former president has seven counts in total. The exact charges remain unclear, but possibilities include obstruction of justice, unauthorized removal of classified documents and improper disclosure of classified information.

When Smith was selected to oversee the Justice Department’s Trump probes in November, he was prosecuting Kosovo war crimes at The Hague. His previous work included serving as chief of the DOJ’s Public Integrity Section, where he oversaw investigations related to public corruption and elections, and as an assistant U.S. attorney for the Eastern District of New York.

In 1994, Smith started out as an assistant district attorney with the Manhattan district attorney's office, which recently secured the first criminal indictment of a former U.S. president in the Trump hush money case.

Trump broke the news of his own indictment on his social media platform. The former president spent the first half of his statement complaining that he had been charged while President Joe Biden has not in his own classified documents case, before revealing that he would be due to appear in federal court on Tuesday afternoon.

Here’s the full text of Trump’s initial post:

The corrupt Biden Administration has informed my attorneys that I have been Indicted, seemingly over the Boxes Hoax, even though Joe Biden has 1850 Boxes at the University of Delaware, additional Boxes in Chinatown, D.C., with even more Boxes at the University of Pennsylvania, and documents strewn all over his garage floor where he parks his Corvette, and which is “secured” by only a garage door that is paper thin, and open much of the time.

I have been summoned to appear at the Federal Courthouse in Miami on Tuesday, at 3 PM. I never thought it possible that such a thing could happen to a former President of the United States, who received far more votes than any sitting President in the History of our Country, and is currently leading, by far, all Candidates, both Democrat and Republican, in Polls of the 2024 Presidential Election. I AM AN INNOCENT MAN!

This is indeed a DARK DAY for the United States of America. We are a Country in serious and rapid Decline, but together we will Make America Great Again!

Speaking at a CNN town hall last month in New Hampshire, Trump could have opted to avoid discussing any of his pending legal matters. But that’s not the path he chose. 

Andrew Weissmann, a legal analyst for MSNBC who served as a lead prosecutor for special counsel Robert Mueller in the investigation of Russian meddling in the 2016 presidential election, described some of Trump’s comments on classified documents at Mar-a-Lago as being like “red meat to a prosecutor,” NBC News’ Ken Dilanian reported. 

John Fishwick, a former U.S. attorney, was even more blunt: “Trump’s comments hurt him, and what he said is significant.”

Donald Trump has been indicted in the classified documents probe and has been summoned to appear in Miami federal court on Tuesday, NBC News has confirmed.

News of Trump’s indictment in the documents probe has been expected, given a flurry of activity in a Florida grand jury this week, and he was recently informed that he was a target of the investigation and his attorneys met with prosecutors in an apparent attempt to stave off indictment.