UPDATE (June 8, 2023 8:30 p.m. E.T.): Former President Donald Trump has officially been indicted a second time. Special counsel Jack Smith has charged Trump with seven counts.
For decades, former President Donald Trump has avoided any real legal accountability for varied alleged attempts to manipulate, defraud and deceive, all of which he has denied in many forms.
The likelihood of Trump facing criminal charges in coming days feels extraordinarily high.
But now, if public reporting is accurate, the likelihood of Trump facing criminal charges in coming days feels extraordinarily high. To be clear: No one in the media, nor any former Justice Department official, myself included, knows with certainty when, or even whether, any indictment of Trump may come.
What we do know is that the vast amount of public information and the Justice Department’s well-documented history of charging former government officials for the unauthorized removal and retention of classified documents does not bode well for the former president. Just last week, an air force lieutenant colonel was sentenced to three years in prison for unlawfully possessing and retaining more than 300 classified files or documents.
Trump himself seems to at least understand the legal jeopardy he is in. This week, his lawyers met with special counsel Jack Smith reportedly to discuss Smith’s two criminal investigations: the first, regarding issues related to President Joe Biden’s certification as the winner of the 2020 presidential election; and the second, involving the removal and retention of classified documents and other records at Trump’s home and exclusive club, Mar-a-Lago.
What Trump failed to mention is that, much like the criminal investigations by Fulton County District Attorney Fani Willis and Manhattan District Attorney Alvin Bragg, he brought Smith’s investigations on himself. He is no victim.
Trump is the one who refused to accept the findings of countless advisers and federal judges, and his own attorney general, that he fairly lost the 2020 election. He is the one who acknowledged, even recently, taking classified documents from the White House. He and his team’s failure to return all of those documents over 18 months caused the Justice Department to seek and a federal judge to approve a search warrant that ultimately resulted in the FBI retrieving thousands of pages of government records, in including more than 100 additional classified documents. In total, 324 classified documents were found at Mar-a-Lago, according to court records.
This fact pattern appears strong, certainly much stronger than Trump’s efforts to undermine the special counsel’s work. His charge of political interference, like Sen. Ted Cruz’s recent screed that any Trump charges are just payback by Attorney General Merrick Garland for Republican obstruction of his Supreme Court nomination, ring hollow to any fair-minded observer.
Garland’s appointment of Smith, an independent, was meant in part to reassure the country that the investigations are being conducted fairly and appropriately without regard to partisan politics. As special counsel, Smith is not subject to the day-to-day supervision of any person at the Justice Department.
That type of personnel move is illustrative of how the Garland Justice Department operates, and how every Justice Department should. In my two years there, I saw Garland put in place people and processes to ensure the rule of law — treating like cases alike — is re-infused into every aspect of the department. Smith, and what the public record indicates about his work, fits that mold. He is known in legal circles to be a meticulous and fair prosecutor, deeply steeped in the Justice Department’s post-Watergate norms.
Now Trump’s fate, and potential freedom, lies in his hands. “As special counsel, he will exercise independent prosecutorial judgement to decide whether charges should be brought,” Garland said when announcing Smith’s appointment last November.
(Yes, there is a provision in department regulations that gives Garland the narrow option of overriding the special counsel if he were to take an inappropriate or unwarranted investigative or prosecutorial step. This seems highly unlikely given Smith’s reputation as a by-the-book prosecutor.)
If past is prologue, Trump will fill the coming hours or days with more of the same bombastic, irresponsible and erratic language and behavior we saw leading into his indictment in Manhattan.
These actions and comments may allow him to drive a media cycle or two. But don’t be fooled: Smith and Willis’ investigations appear poised to usher in a new season of accountability for Trump. And his best efforts to distract the country, play the victim and politicize the moment cannot change that.