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The wide-ranging indictment against Donald Trump over his handling of top secret official documents represents a seminal episode in American political history.
Trump’s career has been full of legal challenges, but never before has a former president been charged with crimes at a federal level.
Indeed, so serious are the seven charges against Trump – including obstruction of justice and the wilful retention of national defence information – that he could in theory receive a 100-year jail term.
Even if that is improbable, the clear strength of the case against him deals a blow to both his crumbling reputation and his chances of regaining the White House.
Trump’s ugly past is catching up with him and, while some of his defenders pretend the case against him amounts to nothing more than defective filing or disorganisation, nothing could be further from the truth.
Trump’s career has been full of legal challenges, but never before has a former president been charged with crimes at a federal level
The seven charges against Trump include obstruction of justice and the wilful retention of national defence information and could in theory see him serve a 100-year jail term
After all, other leading US politicians, including presidents Obama and Biden , held on to classified documents but escaped prosecution because they gave them up as soon as they were found
Trump’s former vice-president Mike Pence also had classified documents but like Obama and Biden he escaped prosecution because he gave them up as soon as they were found
Trump was caught on tape boasting that he had in his hands a plan drawn up by General Mark Milley, the US military chief of staff, (pictured), for an invasion of Iran
After all, other leading US politicians, including presidents Obama and Biden and former vice-president Mike Pence, held on to classified documents but escaped prosecution because they gave them up as soon as they were found. The crucial difference is that Trump, through his lawyers, denied having documents stored in his resort of Mar-a-Largo in Florida.
And what a hoard – 11,000 documents, many of which were classified top secret, containing details of US agents abroad.
Trump clearly knew he should not have held on to this material. That is shown by a secret tape-recording of a meeting at which he boasted that he had in his hands a plan drawn up General Mark Milley, the US military chief of staff, for an invasion of Iran.
In it, Trump says he could not show it to anyone because of its national security implications. So he was obviously aware of the sensitivity of the documentation.
Just as incriminating was his excuse that he could not hand back some of the files because they had been damaged in a flood – exactly the excuse he used when he was investigated by New York authorities over the financial operations of a Hyatt Hotel.
Trump’s prospects are bleak. He is up against a crack prosecution team led by indefatigable special counsel Jack Smith, the thoroughness of whose approach is reflected in the way he ensured that every chambermaid and cleaner at Mar-a-Lago was interviewed under oath so they would be in no position to change their story when the case came to the trial. Trump also suffered a devastating setback when his lawyers lost their right to plead attorney-client privilege because they provided false information about the classified material to the Justice Department. Their testimony will now form part of the prosecution.
There are other problems for Trump. One is that charges have been filed in Miami rather than Washington DC, where there would have been scope for endless wrangles over jurisdiction.
The judge will also be on the lookout for any ‘ringers’ among the jury who lied about their motivations and allegiances in the hope of delivering a biased verdict in favour of Trump.
Unlike in Britain, where majority verdicts are accepted, the decision of a US jury has to be unanimous. But there will probably be four alternate jurors, any of whom will be ready to step up and replace a politically motivated disruptor.
Trump’s usual tactic in legal actions is to delay, delay and delay. In this case he might hope to string out the proceedings until the formal end of the US presidential campaign, but that would achieve nothing.
There is no clause in US law that requires a prosecution to be halted because the defendant is running for office. In fact, we could end up with the bizarre spectacle of Trump campaigning by night for the presidency and sitting in a courtroom by day.
Even if he were convicted on serious criminal charges, there isn’t anything to stop him entering the White House if he wins the election. That said, the House of Representatives would be likely to move to impeach him and the Senate would be likely to convict, removing him from office.
Some Republicans would defend Trump even in such circumstances, but that just illustrates how low the Grand Old Party has sunk under his influence. If the looming court actions are disastrous for Trump, they are equally damaging for his party. The Republicans once postured as the defenders of ‘law and order’, but have now been dragged to the fringes by The Donald and his acolytes.
Extremism helped Trump win over the hard core of activists on the Right, but it holds little appeal to mainstream American opinion. It should be remembered that not only did he lose the election by a wide margin in 2020, but in 2016 he also lost the popular vote, only scraping home thanks to his votes in the electoral college.
Whatever the outcome, Trump’s presence at the top has been an indictment of the American political system, which is now increasingly run by a gerontocracy, with Biden, ex-speaker Nancy Pelosi, Republican leader Mitch McConnell, leading senator Bernie Sanders, and Trump himself are decades older than many of their aides.
It can only be hoped that if this case does signal Trump’s political end, it will also usher in a generation of Republicans with fresh ideas and the energy to carry them through.
- David Cay Johnston is a Pulitzer Prize-winning investigative reporter and author of three bestsellers on Mr Trump
