The Dismissed Federal Cases Against Trump Involved Substantial Evidence of Serious Misconduct

Special Counsel Jack Smith this week moved to dismiss the criminal charges against President-elect Donald Trump in two federal cases based on his alleged interference in the 2020 election and his retention of classified documents after leaving office in 2021. That step is consistent with the Justice Department's longstanding policy against prosecuting sitting presidents. Even without that policy, the Justice Department under Trump surely would have put a swift end to the cases.

As Trump tells it, these cases were politically motivated attempts to prevent his election to a second term, epitomizing the "weaponization of government" that he and his supporters frequently decry. But unlike the New York criminal case against Trump, which resulted in 34 felony convictions based on an iffy legal theory aimed at punishing him for his hush payment to porn star Stormy Daniels, the indictments that Smith obtained alleged serious misconduct that plausibly violated several federal laws.

When the Supreme Court approved broad presidential immunity from criminal prosecution for "official acts" last July, it nixed some parts of the original election interference indictment. In particular, the Court's ruling in Trump v. United States said Trump's communications with the Justice Department, which he pressured to validate his stolen-election fantasy by announcing an investigation of his baseless fraud claims, could not be grounds for criminal liability. But the decision left open the possibility that Trump could be prosecuted based on other actions that he arguably took as a candidate rather than in his official capacity as president.

In a separate decision that did not directly involve Trump, the Supreme Court cast doubt on the viability of charging him with obstructing an official proceeding by plotting to interfere with the congressional ratification of Joe Biden's victory. According to the Court's June 28 ruling in Fischer v. United States, which involved a Capitol rioter who faced the same charge under 18 USC 1512(c)(2), proving a violation of that statute requires "establish[ing] that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects," or "other things used in the proceeding, or attempted to do so."

That decision did not necessarily preclude the Section 1512(c)(2) charge against Trump. As University of Richmond law professor Riley Keenan noted at the time, "the obstruction charge against him is based in part on the allegation that he organized slates of electors to certify false election results to Congress," which "may amount to impairing the integrity of the evidence used in the certification proceedings."

The superseding indictment that Smith filed on August 27 still included the Section 1512(c)(2) charge, along with a conspiracy charge based on the same statute. And it still included the two additional conspiracy charges listed in the original indictment: conspiracy to defraud the United States under 18 USC 371 and conspiracy to deprive Americans of their voting rights under 18 USC 241. The new indictment sought to comply with the Supreme Court's presidential immunity ruling by emphasizing the private character of actions that Trump took after the election, including his recruitment of "alternate electors," his persistent pressure on Vice President Mike Pence to recognize those electors and/or reject Biden's, and his attempts to enlist state officials in his cause.

Those efforts, Smith argued, went beyond Trump's official duties and aimed to illegally keep him in power after he lost reelection. According to Smith, Trump knew he had lost, which meant he acted with criminal intent by trying to reverse that outcome. According to Trump's lawyers, he genuinely believed that systematic election fraud had deprived him of his rightful victory and that he was pursuing legitimate remedies for that injustice. In doing so, they said, he was acting in his official capacity by trying to ensure the integrity of federal elections.

These dueling interpretations hinged on Trump's knowledge and intent. But if prosecutors could muster enough evidence to prove beyond a reasonable doubt that Trump knowingly pressed false fraud claims in an attempt to stop Biden from taking office and that he plotted with others to achieve that illegal result, they could have satisfied the elements of the conspiracy charges.

As for the case involving Trump's handling of classified documents, we may never know whether his retention of that material actually endangered national security. But it is clear that he took thousands of government documents, including more than 300 marked as classified, when he left the White House. It is also clear that he resisted attempts to recover those documents, culminating in what looks like deliberate defiance of a federal subpoena. Smith also alleged that Trump sought to conceal his continued retention of sensitive material by instructing subordinates to move documents in and out of a storage room at Mar-a-Lago and to erase surveillance camera footage of those evasive maneuvers.

Trump viewed those documents as his personal property. But under the Presidential Records Act, which says "the United States shall reserve and retain complete ownership, possession, and control of Presidential records," they belonged in the National Archives. And although that statute does not prescribe any criminal penalties, 18 USC 793(e) does.

The latter statute applies to someone who has "unauthorized possession" of "information relating to the national defense" and "willfully retains" it when he "has reason to believe" it "could be used to the injury of the United States or to the advantage of any foreign nation." According to the indictment, which lists 32 records containing national defense information that Trump kept, he "did willfully retain the documents and fail to deliver them to the officer and employee of the United States entitled to receive them."

Trump averred that he declassified the documents listed in the indictment while he was still president—perhaps via a "standing order" that was news to his staff, perhaps just "by thinking about it," or perhaps by the very act of taking the records to Mar-a-Lago. Whatever you make of those claims, they were irrelevant under Section 793(e) because the definition of national defense information does not hinge on a document's classification status.

Classification likewise had nothing to do with the charges that Trump concealed records "with the intent to impede, obstruct, or influence" a federal investigation, in violation of 18 USC 1519; that he "knowingly and willfully" concealed material facts, in violation of 18 USC 1001(a)(1); and that he "knowingly and willfully" made false statements, in violation of 18 USC 1001(a)(2). Nor was Trump's supposed declassification of the purloined documents relevant to the charges that he induced another person to withhold records from "an official proceeding," in violation of 18 USC 1512(b)(2)(A), and that he concealed records "with the intent to impair [their] availability for use in an official proceeding," in violation of 18 USC 1512(c)(1).

When the original indictment was unsealed in June 2023, Bill Barr, Trump's former attorney general, called it a "very, very damning" description of "reckless conduct." Barr deemed the evidence against Trump "very strong," noting that much of it "comes from his own lawyers." A superseding indictment unveiled the following month made that "very strong" case even stronger, adding the allegation that Trump tried to cover up his cover-up by telling a subordinate to erase incriminating video evidence.

Trump, in short, took a bunch of stuff that did not belong to him, returned it only grudgingly and partially, failed to comply with a federal subpoena seeking the rest, and allegedly connived and lied to cover up his defiance. Leaving aside any potential national security implications, this is the sort of lawless behavior for which people are routinely punished.

In both of these cases, Trump insisted he had done nothing wrong or illegal. But that position was grounded in his conviction that he was entitled to do whatever he wanted based on preposterous claims. We can look forward to more of the same during the next four years.

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