Trump Indicted on Espionage Charges
On June 8, 2023, former President Donald Trump was indicted on 37 charges of violating the Espionage Act and Obstruction of Justice. The charges allege that Trump willfully mishandled classified information after leaving office, by keeping classified documents, including highly Top Secret defense documents at his Florida estate, Mar-a-Lago. Trump was allegedly recorded bragging about highly classified war plans to a writer and knew he was being recorded.
The indictment is the first time a former president has been indicted under the Espionage Act. It is a serious development, and if Trump is convicted, he could face up to 10 years in prison for each count.
Trump has denied any wrongdoing. He has said that the documents were not classified, that he had the right to keep them or that he declassified them. However, the indictment alleges that Trump was well aware that the documents were classified, as he admitted on tape, and that he took steps to conceal them from government officials and instructed his aids and lawyers to do so. The charges are serious and the prospect of jail time is real.
Political Persecution — Equal Protection Concerns
Trump loves to play the victim and is good at it. As usual with any Trump prosecution or persecution (however you view it) prominent Republicans, like Lindsey Graham, have come to his defense. Many have raised concerns that Trump is being singled out for prosecution, while other former officials, such as Hillary Clinton, have not been prosecuted for similar offenses. These concerns are based on the Fourteenth Amendment to the US Constitution, which guarantees equal protection under the law.
In order to show that Trump is being singled out for prosecution, his lawyers would need to show that he was treated differently than other officials who have mishandled classified information. For example, they would need to show that Clinton was not prosecuted for her handling of classified information, even though she was found to have been “grossly negligent” in her handling of emails that contained classified information. Many claim that Clinton’s behavior in destroying phones, bit bleaching her computers and letting classified documents into the hands of a convicted felon — Anthony Weiner — are worse or just as bad as Trump’s behavior.
It is possible that Trump’s lawyers will be able to show that he was treated differently than other officials. However, it is also possible that the government will be able to show that there are legitimate reasons for prosecuting Trump that do not involve selective enforcement. For example, the government might argue that Trump’s actions were more egregious than Clinton’s, or that Trump’s actions posed a greater risk to national security. In any event, this defense may not be enough to get the case thrown out at the outset and could be an issue that gets litigated to the 11th Circuit Court of Appeals or even the Supreme Court
A Trump Appointed Judge and a Florida Venue
Judge Aileen Cannon, a Trump appointee, has been initially assigned to oversee the former president’s federal criminal case in Miami. Cannon has previously presided over the subpoena case related to the FBI’s search of Mar-a-Lago and has been overturned once by the 11th Circuit Court of Appeals. The judge will have to be careful not to exhibit political bias, making it difficult for her to throw out the case on Constitutional grounds alone.
The case is being tried in Miami. The city is diverse, with a mix of Democrats, Republicans, and independents. However, the pool is also likely to be politically divisive, with many jurors having strong opinions about Trump and his presidency. This could make it difficult to find a jury that is truly impartial or is hopelessly deadlocked across political lines.
The trial is expected to be lengthy and complex, and it is possible that it could drag on for months or even years. Trump has vowed to fight the charges vigorously, and he has said that he is confident that he will be acquitted. He is raising money and support from his MAGA base while Republican intellectuals like Trump’s former AG, Bill Barr, has publicly stated that Trump is “toast”.
Attorney Client Privilege and the 4th Amendment
The attorney-client privilege is a legal doctrine that protects communications between a client and their attorney from being disclosed to third parties. The Fourth Amendment to the US Constitution protects individuals from unreasonable searches and seizures.
The prosecution has argued that the attorney-client privilege does not apply to the evidence that was obtained during the FBI’s search of Mar-a-Lago because Trump was not acting as a client when he made the communications that were recorded. The prosecution has also argued that the Fourth Amendment does not apply to the search because Trump did not have a reasonable expectation of privacy in the documents that were found. Trump’s lawyers will do the best to try to exclude the evidence obtained by Trump’s lawyers or from overly broad searches of his residence, especially evidence related to his instructions to lawyers, which the prosecution says are not protected under the crime-fraud exception to the attorney client privilege.
Would a Trump Conviction Disqualify Trump from Running for President?
Section 3 of the 14th Amendment to the United States Constitution states:
“No person shall be a Senator or Representative in Congress, or Elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The Indictment related to Trump’s handling of classified information does not allege that Trump used classified defense information to give aid or comfort to enemies.
The 14th Amendment was adopted after the Civil War to prevent former Confederates from holding office. However, the amendment has also been used to disqualify other officials from holding office, such as Eugene Debs, who was convicted of violating the Espionage Act during World War I.
The trial is a major test for Trump, and it could have a significant impact on his political future. If he is convicted, he could be sentenced to prison, and may ineligible to run for president again. Even if he is acquitted, the trial could damage his reputation and make it more difficult for him to win over voters. While die hard MAGA voters may follow Trump all the way to prison, many Republicans may not.
The trial is also a major test for the justice system. The outcome of the trial will send a signal to other politicians and public officials about the consequences of mishandling classified information. It will also be a test of the public’s faith in the justice system and whether they view this case as political persecution by the party in power.