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. “The F-1023 form is not proof of a crime.”
    Correct – it is however a credible allegation of a crime, further it is a credible allegation of a crime from an FBI source that had previdously been determined credible for over a decade.
    Further it is a credible allegation that is fully consistent with known facts.

    Hunter Did get paid by Burisma,
    Burisma did want Shokin Fired.
    VP Biden was absolutely instrumental in getting Shokin fired by his own admission.

    Criminal defendants are convicted on far less evidence than that all the time.
    The 1023 in conjunction with financial records, V Biden’s public statements, records of finances, Records of the US State department.

    In totality constitute proof beyond a reasonable doubt.
    I would note this is already a far stronger case than either McDonald or Menedez.
    There is ZERO doubt that Biden’s demand that Shokin get sacked leveraging US aid was an excercise of official power.
    Which is what was missing in McDonald. Further the 1023 alone – though it references further evidence that will likely be uncovered,
    Proved that the payments to the Biden’s were NOT gifts

    “There is a common misconception about what that form is. It’s a report noting an unconfirmed allegation reported to the FBI.”

    “Nothing about the allegation is confirmed or considered credible.”
    Incorrect, the source is a source that the FBI has previously vetted and found to be credible.
    That is both the norm and in this case an established fact.
    This is a source the FBI has used for over a decade, and has previously paid over 200K for information.

    Beyond that – the F1023 is not supposed to be the END of an investigation – but eitehr the begining – ot near the beging

    This F1023 – ALONE – though even more so with the significant amount of corroborating evidence is more than sufficient for the FBI to open an investigation.

    FBI has already confirmed to the House that theyu have NOT done so. That BTW is an empeachable offense on the part of Wray and Garland – failing to investigate a credible claim that the president of the united states was bribed is pretty high on the list of partisan failures to do your job.

    “That is the problem.”
    Not much of one. Not only is there enough evidence to open an investigation – which has not been done.
    But there is enough evidence to go to trial.

    “It alleges Bribery”

    “but it does not offer any verifiable proof.”
    In what world do you live ?
    Hunter worked for Burisma.
    Hunter was paid copious amounts by Burisma,
    Burisma was investigated by Shokin.
    Burisma wanted Shokin fired.
    Hunter was actively involved.
    Joe Biden using a threat of withoudling Billions in US Aide succeeded in getting Shokin Fired.

    Every claim above is FACT – with massive amounts of other documets to support it.
    We have Joe Biden’s public statements.
    We have financial reocrds,
    We have emails from Hunter to the State depeartment.
    From the state department to the Office of the VP.
    We have communications between the Prosecutors office and the state department.
    We have depositions under aother in Ukraine.
    We have emails from the Urkainian prosecutors offices.

    BTW ALL of the above was available BEFORE the hunter biden laptop surfaced.

    You are thoroughly unfamiliar with the actual evidence.

    There is a gigantic pile of stinking $hit that implicates Biden.

    “It’s essentially hearsay.” False, the FBI source was a participant in the crime. That is not hearsay.

  2. Anonymous – I have REPEATEDLY asked you for evidence that NARA or the biden admin went to court to challenge Trump’s determination that the documents he took were personal – not presidential recrods.

    Do you dispute that Presidents are allowed to keep personal records ?

    The courts have found that the executive powers clause REQUIRES that the president themselves is entitled to make the decision as to what is personal and what is not.

    Are you disputing that ?

    Lets presume as you claim that this is a decision that the courts can review – where is it that the courts reviewed Trump’s documents to determine whether they are personal or not ?

    What we have is a sittuation where NARA and the Biden admin – NEVER went to court.

    A subpeona is a tool to gain access to evidence NOT take posession. For the purposes of a subpeona the question of whether the documents are personal or presidential is not relevant. Gopvernment gets access if thir claim meets a minimal standard of relevance to the case before the GJ.

    Access is NOT the same as posession, custody or ownership. Access is legally satisfied by a certified copy of the originals.

    Subesequently. DOJ/FBI sought a warrant – A warrant is NOT a determination by the court that the Documents are not Trump’s property.
    Warrants are granted all the time to seize the property of others. But they do NOT establish who owns the seized property – only that in the context of a criminal proceeding the government is allowed to seize it – though it will have to return it after the legal proceding.

    Todate – the Biden admin has NEVER challenged Trump’s ownership of these documents.
    No court has found Trump does not own these documents.

    It is remotely possible that at some later date a court might find otherwise.

    But the law does not work backwards.
    Prima Fascia ownership is Trump’s.
    There is no “crime” until AFTER ownership is successfully challenged.

    Todate that has NOT occured.

    The entire Criminal proceding is lawless.

  3. “The case was dismissed because JW had no claim to the tapes.”
    Of course they did – after 12 years presidential records are subject to FOIA requests – which JW filed.

    “They were not presidential records.”
    Of course they are, they are quite litterally a historical records of the clinton presidency.
    Further they inarguabl;y contained classified information.

    And finally – the determination that they are or are not presidential records is a question of fact.
    Such a determination would require the court to hold hearings where the tapes would be supeona’d
    and Judge ABJ after hearing witnesses and probably listening to the tapes would have to determine as a finding of FACT whether the tapes were or were not presidential records based on their contents.

    You can not claim that the tapes are or are not presidential records without reviewing their content.
    Courts are barred from making findings of fact without hearings and evidence.

    You are incredibly ignorant of centuries of judicial process.

    ” NARA could not legally obtain them since they were not required to retain custody. ”
    Correct – Because Bill Clinton decided they were his property – a determination that the court established is unreviewable by the courts.

    “JW requesting the tapes could not be satisfied because NARA did not have possession of them. Clinton did.”
    Trump had posession of his documents – Same exact thing.

    “NARA could not demand the tapes because they were personal property as defined by the PRA.”

    Where pray tell is that Finding of Fact ? It is nowhere in Judge Jackson’s decision. It can not be – this was a motion to dismiess – where all issues of fact must be based on the claims of the non-moving party – JW.

    JW claimed they were presidential records and contained classified information.
    Judge Jackson did not dispute Either.

    From Judge Jaskon’s Opinion
    “In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must
    “treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all
    inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216
    F.3d 1111, 1113 (D.C. Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir.
    1979) (citations omitted).”

    The complaint alleges that the tapes captured a wide range of presidential matters,
    “potential changes to his cabinet, including whether to fire CIA Director R. James
    Woolsey, Jr. and whether to nominate Madeleine Albright for Secretary of State;”

    “foreign-policy decisions such as the United States’ military involvement in Haiti
    and the contemplated relaxation of the United States’ embargo in Cuba;”

    “President Clinton’s side of telephone conversations with foreign leaders, members
    of the United States Senate, and cabinet secretaries;”

    “President Clinton speaking to several members of the United States Senate in which
    President Clinton attempted to persuade the Senators to vote against a specific
    amendment before the Senate;”

    “President Clinton’s side of a telephone conversation with Congressman William
    Natcher of Kentucky in which President Clinton explained his reasoning for entering
    into the North American Free Trade Agreement based on technical forecasts that he
    received during presidential briefings;”

    “President Clinton’s side of a telephone conversation with U.S. Secretary of State
    Warren Christopher concerning a diplomatic impasse over Bosnia.”

    These are all things that would be presidential records according to the PRA.

    You can argue whether they are true or not, but you can not conclude that as a finding of fact, without actually reviewing the tapes –
    which was NEVER done

    “The Court notes at the outset that there is broad language in Armstrong I stating that the
    PRA accords the President “virtually complete control” over his records during his time in
    office. 924 F.2d at 290. In particular, the court stated that the President enjoys unconstrained
    authority to make decisions regarding the disposal of documents: “[a]lthough the President must
    notify the Archivist before disposing of records . . . neither the Archivist nor Congress has the
    authority to veto the President’s disposal decision.” Id., citing H.R. Rep. No. 95-1487, at 13
    (1978), reprinted in 1978 U.S.C.C.A.N. at 5744. 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.”

    “Thus, a close reading of the Armstrong II decision suggests that the limited judicial
    review authorized by the D.C. Circuit left untouched that portion of Armstrong I that gave the
    President unfettered control over his own documents”

    “On a practical level, the possibility of judicial review raises a host of questions. If it is
    available, why is the PRA entirely silent on the subject?3 What standard of review would
    apply?4 Would there not be a high level of deference accorded to a president’s decision about
    which records are personal? How could a challenge to a president’s classification decision be
    litigated without the decision-maker participating as a party to the lawsuit? If a classification
    decision is reviewable, what is the statute of limitation that applies? And, would that period have
    expired in this case given that President Clinton has been out of office for over twelve years?”

    Much of the rest of the decision is an examination of whether NARA can take possesion of
    documents in an former presidents possession,

    And Judge ABJ’s decision – they CAN;T.

    Clinton was entitled to keep whatever he took with him – regardless of whether it was a presidential reocord.
    As is Trump.

    It is their property – because presidential records have traditionally been the property of the president for over 200 years,
    And congress can not violate 4th and 5th amendment rights willy nilly.

    It is their property because the president has the enfettered power to determine what is an is not theirs under the PRA,
    as applied conforming to the constitution.

    It is their property – because having taken the property from the white house,
    Nowhere in the PRA is NARA or any other part of the federal government EVER authorized to take
    possession of materials a president has taken with them.

    Jackson has one by one REJECTED each of YOUR claims.

    Clinton’s tapes were in Clinton’s posession – not the government.
    Trump’s documents were in his posession – not governments.
    Clinton decided those tapes where his.
    Trump decided those documents were his.

    That decision is arguably unreviewable. Regardless, The Biden admin NEVER sought judicial review of Trump’s decision that the documents were his.

  4. Many of us defending Trump are not doing so because Trump was a great president.

    Trump was a medicre president among the duds of the 21st century.

    We are doing so – because what you are doing is lawless, and dangerous.
    Because YOU are lawless and dangerous.

    Because everywhere we turn – Democrats are allowing lawlessness by their own. deliberately chosing not to prosecuted crimes in cities.
    Not prosecuting violent protestors all over the country for left leaning protests. Ignoring arson, and death threats and deliberately standing down regarding crimes by ordinary people – if left wing political issues are involved in any way. While conversely targing anyone even remotely on the right for far less consequential conduct.

    Parents whose chldren have been raped by alleged trans students are vilified and targeted b DOJ.
    FBI agents are infiltrating churches, and taking down license plate numbers of people at chrurches and school board meetings.
    Arresting people who peascefully protest against left wing causes.

    Allowing prominent democrats to commit a wide array of crimes. While prosecuting republicans for much lessor offense.

    Using the Government to censor people based on Politics.

    The indictment of Trump is just a tiny part of a tidal way of weaponization of the federal (and local) govenrment by those on the left.

    What we are opposing is the rule of man, not law.

    If Clinton was in jail. If Biden was impeached and removed from office – by Democrats.

    MAYBE you would have an argument regarding Trump. But you have done none of those things.

    No rational person beleives this is about the law.

    Frankly, no rational person beleives Trump or Biden or Clinton will ever be convicted of anything.

    That is not what this is about – this is entirely about politics.

    And what is different about what Democrats are doing ? They are violating the law and the constitution to weaponize government against their political enemies.

    You idiots impeached Trump for trying to get an investigation of a political opponent for obvious crimes that there is massive evidence.

    Why exactly is it that the same standards do not apply to the Biden admin.

    Why is Joe Biden still president ? Why aren’t Rep. Thomson, and Swallwell and Nadler and Pelosi, and Schiff putting forward articles of impeachment ?

    If you expect anyone to take you as anything but a partiscan hack weaponizing the law for political ends – you need to return to the rule of law – not men.

    When you hold your own MORE accountable then your enemies – then and only then are your arguments with listening to.

    Until then – you are a partisan hack weaponizing the law badly to get political enemies. You are corrupt.

  5. Anonymous

    Of course this is about Getting Trump

    It has been about getting Trump since 2016.

    We can debate – and you can lose the argument regarding whether these Docs are Trump’s property.

    Regardless, both 200 years of tradition – as well as 40 years of law regarding grant the president ownership of these docs.

    Further no matter how you read the PRA – there is ZERO doubt that Presidents and expresidents have far more claim to ownership, access, custody, … Than anyone else.

    Ypu MUST win on Your VERY SPECIFIC interpretation of the PRA – you min on multiple constiotutional flaws to that interpretation,
    You must will on ALL of that to still fall SHORT of the facts and the law regarding every single other classified documents case int eh past 20 years/

    Even your pretend application of the law – has serious problem with JW. V NARA – it is indepsutably clear that there are atleast some circumstances in which expresident can LEGALLY own docs that were classified during their presidency.

    You can dispute my incredibly sound constitutional and legal argument regarding that.

    But you can not debate the FACT that Pres. Clinton Took tapes that with certainty contain classified conversations and that meet YOUR defition of presidential records that are property of the US government.

    According to YOU – NARA not Clinton gets to make the decision what he can take.
    Yet, NARA did not Clinton did.

    There is really no consequential difference between this case and JW V. NARA – except that This administration went to enormous trouble to avoid going to court to claim OWNERSHIP of these docs. Because they would have lost.

    You have made no credible argument that there is something to distinguish JW. V NARA from this case.

    Yet, no one has indicted Bill Clinton.

    Regardless, the PRA does NOT apply to the records Sandy Berger took – Berger got a slap on the wrist and retained his security clearance.
    The PRA does not apply to the records Gen. Pertreaus took – significantly greater and more consequential classified information that Trump had.
    Another slap on the wrist.

    The PRA does not apply to the Sec. State. SoS Clinton did not own any of the 40K Documents that she took.
    She had no legal ability to declassifiy documents on her own. And no legal ability to take classified documents home.
    She took thousands of classified documents – I beleive the number was 3300. Most of these were marked classified – though much of what she took was “:Born clasified” – she beyond any doubt shared these – including TS/SCI code word only docs with people without security clearances – Clinton Confidant Sydney Belumenthal was provided with massive mideastern intelligece which he used to profit in the mideast. That not only violates the espionage act but is political corruption. It is massively well docuemnted have reckless Clinton was, Some hostile Foreign power – probably the chionese had real time access to her bathroom basement mail server.

    Yet no indictment no prosecution ?

    Sen Biden took classified documents from the Senate SCIF – there is no claim of ownership for senators, no right to declassifiy, no claim of inadvertance for smuggling classified docs out of a SCIF.

    So far no indictment or prosecution.

    VP Biden took classified docs sent them to a warehouse in China town, then elsewhere, then to a chinese funded think tank in DC, kept them in his unsecured garage, Sent them to his lawyers in Massachuesetts for 8 months, before finally letting NARA know that he had them.

    There is no potential claim that ex-VP’s have ownership of presidential documents. There is no claim they can declassifiy them.
    The PRA has very very limited application to VP’s

    And whether you grasp it or not the PRA – even as YOU read it favors Trump.
    Because it makes it CLEAR that presidents and expresidents are DIFFERENT, that they have SOME claim to the documents of their administration.

    VP’s do not. SoS’s do not. The long list of other DEMOCRATS who have not been indicted, charged or prosecuted all have FAR less claim to innocence than Trump.

    When Democrats vote to impeach and remove Biden for mishandling of Classified documents, When Hillary is in prison for mishandling classified documents – you can claim that you are not merely out to “get Trump”

    But so long as you are unwilling to follow your OWN claims regarding the law – when they apply to democrats – no rational person will buy this is not politically motivated.

    The whole claim you are just following the law is LUDICROUSLY STUPID.

    After Biden has left office – do we jail him for the rest of his life for far more egregious conduct regarding classified documents – with no possible claim of innocence ? And again Why isn’t clinton in jail ?

    Should the GOP retake the WH in 2024 – which one way or another is likely, does PResident Trump ro DeSantis or … direct DOJ to go after Both Clintons, Biden, and Obama for good measure ? If Trump si guilty of anything – they ALL certainly are far guiltier.

    The actual rule of law – requires that you apply even your ludicrously stupid legal claims – uniformly – to those you support as well as those you oppose.

    Yet, you do not do so.

    So you understand that without your Warped claims regarding the PRA – you have absolutely nothing on Trump ?

    And with it – there is still a far stronger case against the Clinton’s, Obama, and Biden.

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