(Reuters) – Donald Trump faces a daunting task defending himself against allegations that he illegally kept top-secret documents when he left the White House in 2021, legal experts said, saying neither the law nor the facts speak for themselves seem to be on his side.
The former US president, who is believed to be a candidate for re-election in the 2024 election, was charged in an unsealed indictment in a Florida federal court on Friday. The 37 charges against him include violating the Espionage Act, obstructing the judicial conspiracy and making false statements.
National security law experts were impressed by the wealth of evidence in the indictment, which included documents, photos, text messages, audio and witness statements. They said it was strong evidence prosecutors allege that Trump illegally obtained the documents and then tried to cover it up.
“The details are quite shocking given the carelessness with which these documents were handled and the concerted effort to keep them out of the hands of the FBI,” said Elizabeth Goitein, national security law expert at the Brennan Center for Justice.
Trump’s attorneys did not immediately respond to requests for comment. Trump has maintained his innocence, calling the case a “witch hunt” orchestrated by political enemies.
“There has been no crime other than what the Justice Department and FBI have been doing against me for years,” he wrote on his platform Truth Social on Friday.
Trump’s greatest danger may lie in conspiring to obstruct justice. There could be charges carrying a maximum sentence of 20 years in prison.
Legal experts said the evidence appeared to show Trump knew he had documents that were the subject of a subpoena but refused to release them and encouraged his lawyers to mislead the FBI.
“This is as clearly a disability case as you can imagine,” said Clark Neily, a legal expert at the conservative Cato Institute.
Attorney Mark MacDougall said obstruction of justice is a particularly difficult charge to defend. “It offends people. Hiding things from a lawful court process. Most people understand why this is a crime,” he said.
Legal experts said Trump’s alleged years of efforts to hide documents were likely a major factor in Special Counsel Jack Smith’s decision to indict him.
“Worse Than Crime”
During the investigation, Trump’s lawyers told the FBI that they turned over all classified documents in their possession, which was false. They deny intentionally misleading investigators.
“This is a situation where the cover-up is worse than the crime,” said Goitein of the Brennan Center. “If he had only acted negligently, no charges would have been brought.”
The element of conspiracy makes the obstruction charge far more serious, and all prosecutors must prove Trump colluded with someone else to try to obstruct the investigation, regardless of whether it was successful.
Neily von Cato said that based on his reading of the indictment, prosecutors likely had many witnesses who gave them similar accounts of Trump’s efforts.
Trump claimed he released the documents before taking them. Supporting that claim is a taped conversation cited in the indictment, which said Trump showed a classified document to several people and said he “could have released” it as president, but didn’t.
But the classification problem will probably end up being irrelevant. Prosecutors have indicted Trump on the basis of the Espionage Act, a WWI-era law that existed before secrecy and criminalized only the unauthorized storage of “national defense information.”
National defense information does not need to be classified to be covered by this law, national security law experts said. The information only needs to be useful to the nation’s opponents and closely guarded by the government.
“Let’s assume all documents have been released. Espionage law doesn’t care,” said Todd Huntley, a law professor at Georgetown University.
Could Trump pardon himself?
However, Trump has some potentially successful strategies. His lawyers could challenge testimonies, blame others, or argue that he followed his lawyers’ advice and had no intention of breaking the law.
If it goes to trial, a jury in Florida would hear the case, since the special counsel there wanted to bring charges. In the conservative state, Trump would only need a jury to challenge his conviction for a mistrial to occur.
His defense team could also make motions that would delay a trial until after the November 2024 election. Legal experts are divided over whether Trump could pardon himself if he wins.
(Reporting by Jack Queen in New York; additional reporting by Sarah N. Lynch in Washington, DC; editing by Amy Stevens and Cynthia Osterman)