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Trump indictment unsealed – a criminal law scholar explains what the charges mean, and what prosecutors will now need to prove

A man dressed in a business suit walks toward a lectern that has an American flag behind it.
Special counsel Jack Smith prepares to talk to reporters on June 9, 2023, after the indictment of former President Donald Trump. Chip Somodevilla/Getty Images

Federal prosecutors on June 9, 2023, unsealed the indictment that spells out the government’s case against former President Donald J. Trump, who is accused of violating national security laws and obstructing justice.

The 49-page document details how Trump kept classified government documents – including papers concerning U.S. nuclear capabilities – scattered in boxes across his home at his Mar-a-Lago resort in Florida, long after his presidency ended in 2021 and the government tried to reclaim them.

The indictment also shows that Trump shared classified national defense information with people without any security clearance, including someone on a political action committee.

There are 38 felony charges against Trump – 31 of these counts relate to withholding national defense information. Five counts relate to concealing possession of classified documents, and two relate to giving false statements.

“My office will seek a speedy trial in this matter, consistent with the public interest and the rights of the accused,” said U.S. special prosecutor Jack Smith, who was appointed to oversee the investigation into Trump’s holding of the documents.

The Conversation spoke to criminal law scholar Gabriel J. Chin at the University of California, Davis School of Law about the most important takeaways from the unsealed indictment – and the new, open questions it presents about Trump’s alleged criminal activity.

What is the significance of the Justice Department’s unsealing the indictment on June 9, ahead of Trump’s turning himself in to authorities?

In the federal system, indictments are not automatically sealed, and so either the U.S. special counsel did not request it to be sealed or a judge refused to seal it. I suspect it is more likely the former. This is not a case in which there are active components of the investigation still going on. The case was ready to go and there is no difference, from the government’s point of view, in disclosing the indictment today or not, because the case is in the can.

What stands out about the indictment?

One thing that really stood out was the extensive personal involvement of Donald Trump himself in this alleged activity. Normally, when a big company gets sued, the CEO doesn’t drop everything and start going through documents. That’s what various other professionals are for. The details of Trump’s alleged direct personal involvement in this case were striking.

Second, one of the challenges here is that prosecutors are trying to hold Trump responsible for an affidavit that a lawyer signed that included untrue statements that Trump did not have the documents the government was asking him to return. And to make that case stick, prosecutors will really have to show that Trump himself had some involvement with that.

Count 32 in the indictment focuses on conspiracy and charges against Trump and his aide Walt Nauta, as well as “others known and unknown to the grand jury.” The U.S. attorney general is reserving the right to say other people were conspirators, and that will have consequences. Who are these other people? Is the government’s theory that Trump’s lawyers were innocent dupes and he fed them false information, or were they knowing participants in this criminality? No one else is named, but we are told – by that “others known and unknown” – that there definitely are others.

White pages are shown with text, much of it blacked out.
Pages from the FBI’s redacted search warrant affidavit for Trump’s Mar-a-Lago estate are shown. Mario Tama/Getty Images

Why did the indictment focus on the movement of the boxes that held classified information at Mar-a-Lago?

The major reason is that all of the charges require some sort of intent. None of these charges would apply to someone who is trying to obey the law. Prosecutors have to show that what was going on here was an intentional, calculated act.

Another reason goes back to former Secretary of State Hillary Clinton , former Vice President Mike Pence and President Joe Biden, who have faced their own inquiries into possessing classified documents.

When former FBI Director James Comey said in 2016 that he wasn’t charging Clinton for using her personal email for government work, there were considerations that led him to do that. People who make honest mistakes and cooperate in good faith don’t get charged because, first, it is difficult to make the case of wrongdoing. And there is some level of fairness to say that you don’t want to make public service a booby trap, where if you drop your guard for a second you could wind up in prison.

In this indictment, prosecutors are making an effort to tell the full story and explain why the actions detailed are wrongful. They appear to want to explain why the circumstances in this case justified charges and that this is not a “gotcha!” situation where someone has kept 200 cases of documents that have been carefully screened and one or two documents accidentally got in the mix.

Two men in police uniforms stand outside a limestone building fronted by police barricades.
Police officers stand in front of the U.S. Department of Justice on June 9, 2023. Anna Moneymaker/Getty Images

What’s the significance of the many felony counts facing Trump?

Under the sentencing guidelines, which are usually followed, conviction on all counts could likely lead to a relatively short sentence or to no incarceration at all. However, it is important to note that in theory, Trump could be sentenced to the maximum on each count. The sentence on all counts could be made to run consecutively, which would lead to a sentence in the neighborhood of 400 years. I do not think that would ever happen, but it does underscore the power of the judge in sentencing a case like this.