Why The Latest Trump Indictment Looks So Bad For Him

Welcome to FiveThirtyEight’s politics chat. The transcript below has been lightly edited.

nrakich (Nathaniel Rakich, senior elections analyst): Unless you’ve been living under a rock, you probably know that former President Donald Trump has been indicted a second time — this time by federal prosecutors investigating his possession of classified documents after he left the White House. On Friday, the full indictment was unsealed, and we now know Trump is facing 31 counts of willful retention of national defense information, one count of conspiracy to obstruct justice, one count of withholding a document or record, one count of corruptly concealing a document or record, one count of concealing a document in a federal investigation, one count of scheming to conceal and one count of making false statements and representations. Trump aide Waltine Nauta also faces six charges.

After reading Trump’s first indictment — by the Manhattan district attorney on charges of falsifying business records — we still had a lot of questions about the case. But this indictment is a lot more detailed than the one we got in April and includes some pretty damning allegations and quotes. So let’s start here: What did we learn from this indictment?

ameliatd (Amelia Thomson-DeVeaux, senior reporter): The indictment is very detailed — almost like a story. This is common when prosecutors want to paint a vivid picture of the evidence they’ve gathered as a preview of the case they’re bringing.

And in this situation, the story they’re telling is really a doozy. According to prosecutors, Trump removed highly classified documents from the White House as he was leaving, stored them throughout Mar-a-Lago in areas where they could easily have been accessed by guests or other people (sometimes so carelessly that they were spilling out onto the floor), showed the classified documents to other people while acknowledging they were classified and repeatedly tried to obstruct government efforts to get the documents back.

kaleigh (Kaleigh Rogers, technology and politics reporter): We knew a lot of this from reporting that has come out on this investigation over the past year, but the indictment fleshes out details and includes hard evidence, including text messages and transcriptions of audio recordings.

ameliatd: And pictures! There’s one especially striking picture of the boxes stacked in a ballroom at Mar-a-Lago, where guests had access. The boxes were allegedly there for two months!

nrakich: I thought this picture was particularly crazy. According to the indictment, the image is from December 2021, when Nauta “found several of TRUMP’s boxes fallen and their contents spilled onto the floor of the Storage Room, including a document marked ‘SECRET//REL TO USA, FVEY,’ which denoted that the information in the document was releasable only to the Five Eyes intelligence alliance consisting of Australia, Canada, New Zealand, the United Kingdom, and the United States.”

United States District Court for the Southern District of Florida

kaleigh: The photos also reveal that, for a time, a stack of boxes was stored in a bathroom at Mar-a-Lago, including in the shower. You can see towers of boxes of documents surrounding a toilet, with a chandelier hanging above.

United States District Court for the Southern District of Florida

I guess some people like to have something to read when they’re on the toilet.

ameliatd: Honestly, if we weren’t talking about state secrets that could have been exposed to any bathroom- or ballroom-user at Mar-a-Lago (and a former president allegedly trying to obstruct government efforts to get them back), the indictment would be funny. It’s such a comedy of errors: Trump taking these documents, not having a place to put them, continually moving them, his aide wringing his hands and scolding other staff when they fall on the ground.

kaleigh: His staffers seem to be joking about the classified documents in some text messages included in the indictment, too, at one point calling them “beautiful mind paper boxes.”

nrakich: It’s very “Veep”-esque.

ameliatd: Truly “Veep”-esque. Just … no plan.

nrakich: But there’s a serious point of analysis there, maybe. It does seem like Trump’s possession of the documents was bumbling rather than malicious. Did we learn anything from the indictment about why Trump held onto these documents for so long?

kaleigh: It’s a bit hard to glean motivation from the indictment, especially considering Trump appears to have been anxious about getting caught with materials he wasn’t supposed to have. At one point, he is alleged to have joked about destroying the documents, or having his lawyer remove anything too damning before handing over some of the documents that were provided to the FBI.

ameliatd: Based on the indictment, Trump seems to have wanted to keep the papers as mementos and things he could show off to people. And then he realized that the government was actually quite serious about getting them back, and that’s where the trouble began. There’s one point in the indictment where prosecutors seem to be implying that Trump indirectly asked his attorney to destroy some of the classified materials — ironically using the deletion of former Secretary of State Hillary Clinton’s infamous emails as a point of comparison.

The Clinton emails, guys. We’ll never escape them. This time, they’re all over the background of the indictment as evidence that Trump knew classified materials are serious business that need to be handled with great care.

kaleigh: With expert timing, Clinton is now selling limited-edition “But Her Emails” baseball caps to fundraise for her PAC.

But yes, Amelia, it also seems as though Trump felt these documents could be useful, too. In particular — and this was reported at the end of May — he was angered by a New Yorker story about Gen. Mark Milley, a top national security official, working to rein in Trump during his final days in office. The story claimed that Milley was worried Trump was going to begin a military conflict with Iran. In response, Trump allegedly showed classified documents to unauthorized individuals to try to make the case that it was Milley, not Trump, who wanted to attack Iran.

ameliatd: But mostly it seems like he just couldn’t let them go.

nrakich: OK, now for the question everyone is wondering: How much trouble is Trump in now that we’ve seen the full indictment?

kaleigh: This is by all accounts a much stronger case than his first indictment, in no small part because it’s not riding on an untested legal theory. It also has a lot more solid evidence backing the allegations.

nrakich: Yeah, I mean, there are literally photos of classified documents in Mar-a-Lago!

ameliatd: He is in a lot of trouble. First there’s the removal and mishandling of the documents — and then there’s the fact that Trump allegedly tried very hard to keep the government from getting them back, to the point where he hid boxes from his own lawyers to keep them from turning them over.

These statements from a former president — they’re just stunning. This is the person who was charged with enforcing the laws of the U.S. for four years!

United States District Court for the Southern District of Florida

nrakich: Yeah, as we learned from Watergate, it’s not the crime, it’s the cover-up. The lengths that Trump allegedly went to to obstruct the investigation were pretty breathtaking as well:

United States District Court for the Southern District of Florida

This might be a dumb question, but what’s the bigger problem for Trump: his possession of the documents, or the obstruction part?

ameliatd: It’s hard to say for sure at this point, but I do feel confident saying that Trump has made his situation much worse by going to such dramatic lengths to avoid returning the documents.

kaleigh: It feels like the obstruction is the real issue, no? As Trump is quick to point out, it’s not all that uncommon for former officials to have classified documents mixed in with their personal files when they leave office. There have been classified documents found at President Biden’s and former Vice President Mike Pence’s houses. They were investigated, but Biden’s and Pence’s cooperation with recovery efforts appears to be a key difference.

ameliatd: This isn’t mixing classified documents in with his personal files, though. According to the indictment, Trump knew the documents were classified, and he showed them to people who didn’t have the authorization to see them anyway.

There isn’t a lot of room for plausible deniability in this indictment.

kaleigh: True, but had Trump responded to the initial inquiries with “oh, you know, you’re right, here you go,” it’s harder to imagine a big case against him even if he knew from the get-go he wasn’t supposed to keep them.

ameliatd: Right, if he had complied when the National Archives and Records Administration asked for the documents back, we would be in a different situation. But the fact that Trump appears to have deliberately taken the documents points to the bigger underlying problem: He took them because he wanted to keep them (and maybe thought he should be entitled to keep them?) and didn’t want to give them back.

The crime and the cover-up seem pretty intertwined from that perspective.

nrakich: In terms of consequences for Trump, some versions of the indictment include the maximum prison sentences associated with each count on the last page. The conspiracy to obstruct justice, withholding a document or record, corruptly concealing a document or record and concealing a document in a federal investigation counts could be worth up to 20 years in prison each. But each count of willful retention of national defense information is worth only up to 10 years. 

ameliatd: The maximum sentences aren’t a great proxy for eventual consequences, though, because even if Trump is convicted, he’s unlikely to get the maximum punishment. And there are no mandatory minimum sentences for these charges, so it’s hard to predict what kind of prison time Trump would face if convicted.

nrakich: Yeah, and he’s obviously a special case as a former president. It still seems very difficult to believe that he will see the inside of a prison cell. And there is still so much uncertainty about whether this case will even go to trial or if he’ll cut a deal.

ameliatd: Or if the case will get thrown out — which Trump will certainly attempt.

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