The “Aha” Moment: The Trump Indictment Could Prove Revealing for Either Trump or the DOJ

Below is my column in the New York Post on the Trump indictment.

There are legitimate questions about the independence and integrity shown by the Department in past investigations from the Russian collusion allegations to the Hunter Biden scandal. The Justice Department cannot ignore those widespread concerns in these cases.

There is now word that the indictment may be released today. The public is likely to have an “Aha” moment in an indictment that will make either the case against Trump or the Department itself.

Here is the column:

“I am an innocent man!”

The words of former President Donald Trump would ordinarily be a good start for any criminal defendant.

But Trump is no ordinary criminal defendant.

He was speaking to millions of people who have already made up their minds on an indictment that has not been released, let alone read.

Indeed, the specifics of the indictment seem entirely immaterial to most people.

For roughly 30% on both ends of the political spectrum, any inquiry into these charges will begin and end at the caption: “United States v. Trump.”

Those four words either sum up a prosecution or persecution in the minds of most citizens.

This case, however, is different. In New York, Trump is facing a clearly political prosecution by Manhattan District Attorney Alvin Bragg, a case that easily fulfills Trump’s narrative of the weaponization of the criminal justice system.

In Georgia, another Democratic openly anti-Trump prosecutor is pursuing a case of election interference that many have questioned.

Yet, for roughly two years, I have said that there was one torpedo in the water that was a serious threat: an obstruction charge out of Mar-a-Lago.

That torpedo just hit.

Trump has long maintained that he and his staff viewed this as a civil matter under the Presidential Records Act.

They disagreed with the National Archives about Trump’s right to possess the documents.

Some documents were returned to the Archives and some were retained.

The FBI asked for and was given access to the storage room for the documents and, when it asked for additional security, the Trump team agreed.

They believed that they were still cooperating when the raid occurred on Mar-a-Lago.

The FBI has offered a strikingly different account.

From the very start, they described the conduct of the Trump team as “obstructive” — a line that many of us immediately flagged as ominous.

There are allegations of the movement of documents, false statements, and even the possible destruction of documents.

In the end, however, there is the mind of Donald Trump.

This case will turn on mens rea: did he know what he was doing was wrong, and what was his intent?

The actions are largely established, it is the motivation that will occupy a jury.

As in so many past controversies, Trump’s intransigence seems inexplicable and self-defeating.

However, to be criminal, it must be a knowing or willful violation of specific provisions.

There still remain key details that could blunt this defense.

We know that prosecutions forced Trump attorneys to go before a grand jury.

While that may create an appellate issue, there may be a cooperating witness who could offer damaging evidence of Trump’s knowledge or intent.

There are also rumors of video or audio tapes of the movement of documents or Trump discussing the material.

What is clear is that Trump is facing charges called “the darlings” of federal prosecutors: false statements to federal investigators and obstruction of justice.

Those charges represent a double threat.

First, the Justice Department has a long record of winning these cases.

They tend to be straightforward propositions for a jury.

They are the charges that criminal defense attorneys tend to loathe because they can come down to insular allegations that come with a ten to twenty-year potential sentence.

Second, and most seriously, these charges are secondary to the original basis for Trump removing or retaining the documents.

These are crimes that concern how Trump responded to the investigation.

The false statements charge is particularly damaging because it is a stand-alone offense.

Everything Trump has alleged can be true, but he could still be convicted if he falsified or misrepresented a fact in a discussion with the FBI.

And while there are legitimate concerns over the FBI’s past bias and hostility toward Trump, it is extremely hard to prevail on such selective prosecution claims in court.

Courts tend not to delve into the motivation of prosecutors if they have stated an otherwise valid legal and factual basis for charges.

Even if a court did entertain selective prosecution claims, it would not excuse false statements or obstruction charges.

The Trump team will not be the only ones uneasy in anticipation of these details.

The inclusion of mishandling charges is likely a concern for the Biden legal team.

After all, Biden is accused of repeatedly moving classified material to different locations, including his garage.

Some documents have reportedly been traced to removal from a secure location while Biden was still a senator over a decade ago.

If the indictment charges the possession and mishandling crimes, it could make it more difficult for his own special counsel to avoid charging Biden.

On the other hand, if the charges are crafted to avoid those crimes, there will be a concern over prosecutors seeking to nail President Trump but miss President Biden.

The Justice Department can argue that Biden did not claim that he had a right to take the documents and did not knowingly, stubbornly hold on to the documents after they were demanded.

While Biden’s account seems implausible on some points, the Justice Department could distinguish the cases as a matter of intentional versus negligent conduct.

In the end, whatever is found in this indictment is not likely to change many minds about Donald Trump or Joe Biden.

However, the credibility of the Justice Department is on the line.

The Special Counsel should not have taken this historic action without an overwhelming case.

We will all, therefore, be waiting to see if the indictment contains the type of “Aha” revelations that would justify this action.

Indicting a former president and the leading candidate for the presidency should not be a close call.

Jonathan Turley is an attorney and a professor at George Washington University Law School.

224 thoughts on “The “Aha” Moment: The Trump Indictment Could Prove Revealing for Either Trump or the DOJ”

  1. Isn’t this persecution of Frm. President Trump in order to stop him from being Elected in 2024, and if stopped, preventing the chances of his Pursuers being Charged and Prosecuted. (Held Accountable by Trump for Their actions against Him)
    I Think it’s so, The Judge (if not tainted) should consider quite heavily the mens rea of the Prosecution.

    Come Tuesday, November 5, 2024 – We may have the First Convict elected The President of the United States.
    (Not that some of the past Presidents weren’t Crooks too)

  2. The DOJ is going to say that Trump and Biden are not being subjected to different standards of justice, because Trump is being charged with obstruction and espionage, not the mishandling of classified documents. However, when federal prosecutors aggressively investigate Republicans for non-crimes, and not Democrats, in the hope that the Republicans commit process crimes along the way, that may be a violation of the 14th amendment of the Constitution. The 14th amendment requires equality under the law not only when bringing charges against Americans but also when deciding who to investigate.

  3. The United States is being attacked by a pack of fools and tyrants. Daily we see/hear an assault of Law and Order, miss use of government agencies, free speech denial, organized mobs and many more examples indeed! These morons’ endeavor to sculpt inappropriate meaning to humans’ understandings of nature, biology, science, law: the list goes on and on.

    We must unite to expel these fools and tyrants from any leadership position, casting their following troops aside with ridicule and distain. They must be defeated for the sake of this great nation.

    From Earl Baldwin of Bewdley: “You will find in politics that you are much exposed to the attribution of false motive…”

  4. Don’t why Trump would steal secret documents. He hasn’t read anything more complicated than a comic book for the last 40 years.

    1. Wow, what a well crafted Zinger! Don’t why dirtydog67 is concerned Trump reading. At least can remember he read something.

    2. Hey Dirty Dog, care to give us the reading list of known Mensa member Joe Biden? Biden lied about his law school standing, his grades, his degrees and everything else, but you do you.

  5. It’s a MAJOR blunder for Jack Smith to go after Trump on a technicality or process crime. Trump committed a grandiose crime in plotting with Giuliani and Eastman to mickey the EC Count in order to throw the 2020 election to the House. There is a trove of evidence for the plot, including the self-incriminating public statement Trump makes in his Ellipse speech on 1/6…”if Mile Pence does the right thing….I become President”. You won’t find a clearer admission of motive (becoming President) and means (Mike Pence rejects enough EC Certificates to deny Biden 270.)

    There wasn’t any national security damage from the classified docs, and based on past history with Clinton, Biden, Obama, etc, public opinion is not going to line up to make a special case for Trump. And out of 12 jurors from Palm Beach, I’m pretty sure a conviction on a technicality will not be forthcoming.

    The first and only indictment should have been plotting to undermine the EC Count in Congress. You charge the biggest offense for which proof beyond a reasonable doubt is available.

  6. Let the case run its course. This is a double edge sword. Regardless of how this proceeds, there will be screams of trickery. Trump cries he is being treated differently and he has a point. Yet, the bigger question is did he do what he is accused? That is where is should start and stop. The whataboutisms are nothing more than I did what they did. Yet, it cannot be dismissed outright in his case. I do agree with the good professor that DOJ has their credibility on the line. This must be clear cut and overly convincing and cannot have a whiff of we don’t like him, so it does not matter.

    I also believe this cuts against Biden too. He should be very wary of crowing out loud because his turn could be coming soon. Justice is blind for a reason.

    1. “Justice is blind for a reason.”

      Good Lord, really? How can you write or believe that?

  7. Unless the FBI raids Obama, Biden, Bush and Clinton at dawn, there is no way to view this as anything but a blatant weaponization of an already weaponized Injustice system. The fact that Professor Turley still defends this action, even with faint praise, simply tells you who he voted for and who he intends to vote for in 2024.

    1. Hey now, you can’t do that to Biden.
      How would you establish Mens Rhea if he’s not fully competent?

      Clinton should have been behind bars. 10 yrs max for each email that was classified.
      Those who knew about her server and submitted classified material to her on it would also be charged. (Including Obama)

      The ‘obstruction’ is going to be interesting as Turley points out.

      The best thing we can hope for is Trump backing down, and backing DeSantis.
      Then you can see things get interesting in DC in 2024.

  8. I’m curious to know if Justice Amy Berman Jackson would accept her own opinion if this were to reach SCOTUS on appeal. Is that even possible?

    44 U.S.C. § 2203(a). The only reference in the entire statute to the designation of records as personal versus Presidential also calls for the decision to be made by the executive, and to be made during, and not after, the presidency. It provides: “materials produced or received by the President, [and other Executive Office employees], shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.” Id. § 2203(b . The PRA contains no provision obligating or even permitting the Archivist to assume control over records that the President “categorized” and “filed separately” as personal records. At the conclusion of the President’s term, the Archivist only “assume[s] responsibility for . . . the Presidential records.”

    1. Judge Amy Berman Jackson is not Justice Ketanji Brown Jackson, and you should read the indictment, which has been unsealed.

  9. Leftist fools cheering this indictment have no foresight this new precedent will be used against them as soon as 2025.

  10. They must pay you a lot of money to rent your credentials, Turley, to try to throw water on the indictment before you’ve even seen it, much less looked at any evidence. The following opening is false, something you know quite well: “There are legitimate questions about the independence and integrity shown by the Department in past investigations from the Russian collusion allegations to the Hunter Biden scandal. The Justice Department cannot ignore those widespread concerns in these cases.” Russian hackers DID collude with Trump’s campaign–ignore the DOJ–just look at the report of the REPUBLICAN Senate Committee that investigated this. Check out the statements of Dan Coats, head of US intelligence, who says that Russian hackers DID spread lies about Hillary Clinton to areas where support for her was soft enough to sway the vote. The “Hunter Biden Scandal” is nothing–so says the Wall Street Journal in today’s op ed, and so said “Fox and Friends”. There is absoolutely no evidence that Joe Biden was bribed or took any money from any foreign governments or individuals. So, there are no “legitimate” questions about the DOJ’s independence or integrity–the grounds you cite are not true, and you know it, Turley.

    Here’s the bottom line: Trump is his own worst enemy. He always has been and always will be, because he is driven by his massive ego and lack of any semblance of personal integrity, patriotism or altruism. He exists to feed that ego–which will be his undoing. His ego needed the attention, adulation and power of the presidency, so he just HAD to “win” the White House–he couldn’t win over most American voters, so he cheated. He just HAD to win in 2020, and did everything possible to try to prevail, but he didn’t. That didn’t stop him from going on “Stop the Steal” campaigns to mislead his followers into believing that his imaginary “landslide victory” (his ego REQUIRES not just a victory, but a landslide) was stolen by a “rigged election”. He did everything possible to try to create facts to support this outcome, including recounts, re-recounts, audits, spreading lies about voting equipment rigging results, filing 60+ lawsuits trying to overturn the results, pressuring state election officials to “find” nonexistent votes, getting fake “electors” to falsify election records, and hiring multiple companies to prove he won, all of which proved he DID lose. But, that ego still needs feeding–he can’t just go back to being a regular citizen–so he stole classified documents–things he could flash around to show how important he once had been. Before the theft, he was told that he couldn’t take them. He was told that there is a process for declassifying documents, especially those most-sensitive ones–like those he’s on tape discussing–how we would go about invading Iraq. On this tape, he admitted that he KNEW the information was classified–so his public statements to the contrary–that they had been declassified, that he could mentally declasify them, or that the mere act of taken them automatically declassifies them–are just more lies. He wasn’t leaving the White House empty-handed. Whether he stole the documents just to show off, or to sell copies to those for whom the information would be valuable, or to use as some kind of leverage to get back into office, for blackmail purposes, or just because he was in a position to get them, isn’t clear. What is clear, however, is that before he stole them, he was told he couldn’t take them, that he took them anyway, and that he decided he was not going to return them voluntarily–because no one tells Trump what to do.

    He voluntarily returned some, but not all, of them. More were recovered after he forced the NARA, which dealt with him very deferentially, to get a subpoena. That was not sufficient to repatriate all of the documents, so he forced the NARA to obtain a search warrant to obtain even more. It’s still not clear whether all of them have been returned. His lawyer conducted a search of the premises, but before he arrived, Trump had some of the boxes moved away from the search area. Some documents were found in a desk, accessible by anyone.

    All of this could have been avoided if he simply would have done what Pence and Biden both did–cooperate and agree to return the documents. Trump’s ego won’t let him be told what to do by anyone–and this includes the plethora of lawyers he has had over the years. He won’t listen to them. He wouldn’t listen to the NARA, wouldn’t cooperate, so he got indicted.

    The political abuse here is even suggesting that the DOJ is motivated by politics in this indictment. Merrick Garland went out of his way to stay out of it by handing it over to Jack Smith. Biden has, too–in fact, he learned about the indictment the same way the rest of us did–from television. Jack Smith is above reproach, despite Trump’s name-calling. The bottom line is that we cannot allow anyone to take classified documents, refuse to return them, lie about returning them and discuss contents of highly-sensitive national security matters contained in classified documents with strangers, just to show off. Trump brought all of this on himself, and no matter how much Turley harps about the DOJ not getting involved in the nonexistent “Hunter Biden Scandal” or alt-right media’s spin on Russian collusion as somehow raising questions about the validity of this indictment, what Trump did is inexcusable. None of the rest of us could get away with stealing classified documents, refusing to return them, lying about returning them and discussing our national security secrets without facing criminal liability. Trump is a textbook narcissist, and his own worst enemy.

      1. Jared Kushner aka Sheik Two Billiion is above reproach. He got that loan somehow. Documents furnished by his father-in-law?

      2. I served honorably for more than 20 years in the US Navy. For several years I had a COSMIC (NATO) top secret clearance because I had access to information not only about NATO’s capabilities but also tactics that NATO would use in various scenarios. To gain access to this facility you had to present credentials to the Marine at one of the two doors. If you failed to provide the proper credentials and tried to enter the facility the Marine was authorized to use deadly force to prevent you from entering the facility.
        That said, Trump has greatly endangered the US, if not NATO, by his handling of highly classified materials. He should spend the rest of his life in a prison.

        1. Wally: thank you. What I find stunning is Trump’s utter obliviousness to just how serious our national security matters are. Sources and methods are literally life and death to us, our service members and our allies, but Trump still doesn’t seem to catch on to just how critically important these things are. If what is alleged in the criminal complaint is true, which there’s every reason to believe is the case as Jack Smith has been very diligent in documenting the proof, Trump would do well not to drag out the litigation, but to work out something with the DOJ–some kind of plea agreement, probation, community service, a very hefty fine and to agree to withdraw his nomination and not to run for any public office again. Spiro Agnew was allowed to escape jail in this manner after being charged with multiple felonies. That’s not llikely with Trump, but if he really cared about the US, that’s what he would do. Of course, if he really cared about the US in the first place, he wouldn’t have stolen the documents, lied about returning them and done the other things alleged.

        2. How about Hillary? Same? The Clinton Foundation pay-for-play scheme being run out of the State Department via her private server only she controlled?

          How about Joe Biden actually selling his high office to corrupt adversaries around the globe?

          Check your outrage, please.

        3. “I served honorably for more than 20 years in the US Navy‘

          If you are the same Wally that has posted many times on this blog, it is hard to believe what you say above.

    1. Here’s the deal….when Comey is behind bars…..when Clinton is prosecuted and behind bars….when McCabe is behind bars…..when Biden is prosecuted….when all the rest of the liars and perjurors who knowingly were breaking laws they were required to follow are prosecuted and serving prison time….ONLY THEN will any semblence of faith in our legal system begin to be restored….

    2. As Mike Davis points out:

      “The timing of this indictment proves it’s political:

      Garland indicted Trump the day after we learned the FBI covered up evidence since 2017 then-VP Biden and his family took at least $10 million in foreign bribes and changed U.S. policy.”

      1. Uh, Anonymous: in 2017, PENCE was VP–not Biden. The election Trump stole from Hillary Clinton was in November, 2016. This is the same mistake Turley got skewered for previously. Because Biden was not holding any public office in 2017, he couldn’t have been bribed, which is why the “Hunter Biden Scandal” is bunk. I’d stop following Mike Davis if I were you–he steers you wrong.

        1. The date 2017 refers to the time period when the FBI/DOJ had actual evidence of bribery implicating Joe Biden directly receiving millions WHILE he was Obama’s VP. The FBI sat on it and buried it — just like they did Hunter’s laptop.

        2. Also, Trump had all the declassifed Crossfire Hurricane documents that implicate the scheme hatched in 2016 by Clinton, the FBI, DOJ Obama and Biden intended to destroy Trump’s presidency. The raid on Mar a Lago, that Joe Biden himself had to sign off on, was done in order to get the declassifed Crossfire Hurricane documents back — precisely because the documents implicate the actual CRIMES committed by the government.

  11. there is court precedent, under a ruling by Judge Amy Berman Jackson, that states:

    there was no provision in the Presidential Records Act to force the National Archives to seize records from a former president.

    But Jackson’s ruling — along with the Justice Department’s arguments that preceded it — made some other sweeping declarations that have more direct relevance to the FBI’s decision to seize handwritten notes and files Trump took with him to Mar-a-Lago. The most relevant is that a president’s discretion on what are personal vs. official records is far-reaching and solely his, as is his ability to declassify or destroy records at will.

    “Under the statutory scheme established by the PRA, the decision to segregate personal materials from Presidential records is made by the President, during the President’s term and in his sole discretion,” Jackson wrote in her March 2012 decision, which was never appealed.

    “Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office, it would be difficult for this Court to conclude that Congress intended that he would have less authority to do what he pleases with what he considers to be his personal records,” she added.

    Perhaps more important as it relates to Trump’s criminal indictment is Jackson that this issue “has no criminal penalty,” as this is a civil matter between the Archives and the former President.

    Jackson also concluded that a decision to challenge a president’s decision lies solely with the National Archives and can’t be reviewed by a court. If the Archives wants to challenge a decision, that agency and the attorney general can initiate an enforcement mechanism under the law, but it is a civil procedure and has no criminal penalty, she noted.

    So my question is this: If the court precedent established that any case over presidential records is a civil matter and not criminal, then does that make any investigation by the FBI and indictments by the DOJ over this matter moot? In other words, Is this a matter of fruit from a poisonous tree?

    1. You’re right, Olly. Something tells me the timing of the indictment is a direct reprisal response to the FBI’s own documents showing one of their ‘trusted’ sources reporting Biden’s $5M payments received from Ukraine while occupying the Office of Vice President, as reported by Team Red.

  12. “However, the credibility of the Justice Department is on the line.”

    Talk about burying the lead, Doc. You should have made this obvious at the start.

  13. He declassified but did not redistribute, and those documents he retained were in certified secure storage.

    1. We do not know whether the word “classified” appears in the indictment at all.

      1. Yes we do…repeatedly

        It is used constantly because the indictment is a political document. It is meant to declare the accused as guilty before the 1st court appearence.

  14. Orange Imbecile knowingly took and kept classified documents. Is that ok? Is that legal? Oh it isn’t. So throw the book at him.

    Did Pence have classified documents? Is that legal? Throw the book at him.

    Did Biden have classified documents? Is that legal? Throw the book at him.

    Elected, and formerly elected and always corrupt, officials should be held accountable, just like anyone else. But no, the TV host gets a special pass, because he once had bonespurs. And because Paula White’s angels are still on their way from Africa apparently.

      1. The indictment was unsealed earlier this afternoon, and we do know that the word “classified” appears many times.

    1. Add (because we know they did):
      Did Obama have classified documents? Is that legal? Throw the book at him.
      Did Clinton have classified documents? Is that legal? Throw the book at him.

    2. “Orange Imbecile knowingly took and kept classified documents. Is that ok? Is that legal?”

      Yes and yes.

  15. When the FBI says someone is lying, they are the last people who should to call anyone a liar. They get the testimony they want by extorting witnesses to say what the FBI wants them to say.

  16. My take is that if Trump violated the records law, then he should be tried for that offense. But so should any other politician, regardless of party affiliation. As a former federal employee, I know that I would have been fired, fined and likely jailed had I engaged in Hillary-type shenanigans. If the DOJ simply ignores the other side, they are proving that this is politically motivated and are no longer worthy of the public trust for a significant part of the populace, the Pence action notwithstanding

    1. As far as anyone knows, Trump isn’t being indicted for violating civil records laws but being accused of felony lying to the feds about something the feds haven’t yet disclosed.

      1. JAFO, Joseph Strom replied to you but it was deleted. Upstate and others replied to Joseph Strom, and his and their responses were deleted.

        It seems that whenever a new leftist appears on the blog, he is one of those who was banned from the list like Bug. They are significantly impaired emotionally, easily noted in their comments.

        This new name might be another blog member like Svelaz, who is crazy, to begin with, and has all the features of one with NPD (narcissistic Personality Disorder). He suddenly disappeared, and this new name reappeared with a lesser number of abridged responses. Svelaz was increasing the number of people he fought with as his NPD was spiraling out of control.

        Of course, it could be Bug or our past blog mate Peter Hill (Shill) who came up with many names from characters in movies, etc. Joseph Strom is a character from a novel. Shill, also known as Paint Chips and WeHo called himself Deke Thorton, Philip Skene, and many more. Some believe, with good cause, Svelaz is Peter Hill, as are some of the anonymous leftists who flood the blog. Both Svelaz and Hill provided us with a peek into their aberrant sexual lives and fantasies. Bug did as well with his continuous use of foul language. (All are poorly informed leftists where sexual aberrancy exists.)

        That is a good possibility because people with such emotional difficulties often develop delusions and express them in bizarre ways.

        Whether it is Bug, the Shill, Deke Thornton, Svelaz, Bug. etc. doesn’t matter for none of them care enough to check out their facts and are almost always proven wrong. They are unimportant and with worthless opinions. You, Upstate, and many others can be trusted, something one cannot say for that crowd.

        1. S. Meyer,
          Ah, thank you for pointing that out.
          I too noticed the various new names appearing and had my suspicions that turned out correct.
          Tim Peterson was another name that was short lived.
          It appears they are getting desperate to go to such lengths as transparent as they may be.

          1. Upstate, I figured you noticed it. What these new names indicate is derangement.

            ATS is back again, posting everything said but not proven. He used to do that but closed his mouth when he was conclusively proven erroneous and a liar. He goes on the offensive because he has no defense for all the errors he has made and the fact that Trump is innocent, whether or not some actions unintentionally can be misinterpreted. Biden’s criminality is evident to all except those with low IQs or derangement. Hillary Clinton’s actions were clear. She destroyed evidence after being given a subpoena for it. Obama’s actions were poor and likely in the same league as Bill Clinton’s. Trump’s actions never came close to what Bill and Barry’s actions were.

            The left is destroying the nation because they do not believe in our freedoms. ATS is a type of Marxist-Stalinist lacking a moral compass.

        2. S Meyer, they are a peculiar bunch for sure. They most likely attend the same double-secret meetings to ensure they’re all signing from the same Leftist hymnal when posting.

          Then again, are we absolutely sure a poorly-written, incomplete, pre-alpha, AI code hasn’t been unleashed unto the blog to auto-reply with gibberish when it’s challenged to use reason and logic? I’m not so sure that isn’t the case.

  17. Trump’s willful ignorance or blindness to the illegality of hiding the documents when he says he declassified “in my mind” should be enough to convict.

  18. When a prosecutor that did not vote for Biden indicts Trump then I will believe it has nothing to do with politics.

    1. When a judge that wasn’t appointed by Trump presides over his case then I will believe justice might be served.

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