It's Over, Trump Will Be Indicted

S E E D E D   C O N T E N T

Mar-a-Lago Madness

There is little left for the Justice Department to do but decide whether to wait until after the midterms to formally seek the indictment from the grand jury.

Brad Moss

Updated Aug. 26, 2022 6:21PM ET / Published Aug. 26, 2022 6:01PM ET opinion

Brandon Bell/Getty Images

I have finally seen enough. Donald Trump will be indicted by a federal grand jury.

You heard me right: I believe Trump will actually be indicted for a criminal offense. Even with all its redactions, the probable cause affidavit published today by the magistrate judge in Florida makes clear to me three essential points:

(1) Trump was in unauthorized possession of national defense information, namely properly marked classified documents.

(2) He was put on notice by the U.S. Government that he was not permitted to retain those documents at Mar-a-Lago.

(3) He continued to maintain possession of the documents (and allegedly undertook efforts to conceal them in different places throughout the property) up until the FBI finally executed a search warrant earlier this month.

That is the ball game, folks. Absent some unforeseen change in factual or legal circumstances, I believe there is little left for the Justice Department to do but decide whether to wait until after the midterms to formally seek the indictment from the grand jury.

The cruelest irony for Trump is that it never needed to be this way.

Put aside that in the chaos following his election loss Trump's team never undertook the normal procedure for properly sorting through and archiving his presidential records in coordination with the National Archives and Records Administration (NARA). Put aside that properly marked classified records were shipped to Mar-a-Lago and sat there for months until he began turning stuff over to NARA in late 2021.

If he had fully cooperated at that point, and returned all of the records to NARA last year, this likely never would have become a criminal matter. DOJ would have declined to take any action, notwithstanding the existence of the classified records, and it would have been a "no harm, no foul" situation. Just another minor story in the Trump saga of incompetence.

"Just ask Sidney Powell how well it works to try to litigate in court the way you argue on cable news. Hint: it does not go well."

But Trump just could not bring himself to play by the rules. He turned over 15 boxes last January but did not turn over all the records. Political operatives from conservative organizations started whispering into his ear that he had legal precedent on his side to refuse to turn over the classified records to NARA (he did not). His lawyers surprisingly wrote a rather condescending letter to DOJ in May 2022, effectively arguing that even if there were still classified records at Mar-a-Lago the FBI lacked the authority to take any criminal action against Trump given his former status as president. Then, in June 2022 after the FBI executed a subpoena to recover more records at Mar-a-Lago, two Trump lawyers wrote (and one signed) a sworn affidavit reassuring the government there were no more classified records at the property.

We now know that statement was not true. The FBI found multiple more classified records, including some with markings for Top Secret/Sensitive Compartmented Information (TS/SCI) during the search this month, and not just located in the storage room with the other boxes of records. They found records located in different parts of Mar-a-Lago.

Of course, there are various arguments for why a prosecution might not succeed in this situation.

There is the contention by Trump and his allies that he declassified the documents, whether through a "standing order" or more specific verbal action. No evidence has been produced corroborating that assertion, and there certainly is no indication that the classification markings themselves were ever revised to reflect the declassification. The Trump lawyers in May certainly did not provide any such evidence in their letter to DOJ, and they similarly provided no evidence of it in their "motion" filed earlier this week in district court in Florida seeking a Special Master.

And that is before we even consider if the classification status would matter for an Espionage Act prosecution, which only requires that the information relate to the national defense.

There is also the issue of selective political prosecution and supposed bad faith by the government in its decision to pursue the case. This is something that has been mentioned ad nauseum by Trump allies on cable news, and was briefly mentioned in the "motion" filed earlier this week in court. Lacking from those arguments is anything beyond rank speculation. That will not fly in court. Just ask Sidney Powell how well it works to try to litigate in court the way you argue on cable news. Hint: it does not go well.

All in all, this case should and in my opinion will result in an indictment. Sure, an indictment does not equal a conviction. Trump is still assumed innocent until proven guilty. There are unknown variables like whether the prosecution would occur in Florida or in D.C. We do not know what evidence Trump might have to substantiate his declassification claim. And we do not know what the courts would say about his various arguments.

Get the popcorn ready either way.

Bradley P. Moss is a Partner and national security attorney at the Washington, D.C. Law Office of Mark S. Zaid, P.C. He can be found on Twitter at @BradMossEsq.