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.