Analysis: Donald Trump's federal charges are a grave moment for the US

Analysis by Stephen Collinson for CNN

It's the United States of America v. Donald J. Trump. 

For the first time in history, the nation is seeking to put on criminal trial a person who was elected to lead it as president.

Trump is due in court in Miami on Tuesday to answer a 37-count indictment that alleges he willfully retained classified documents after he left office and refused to return them.

His appearance will be an earthshaking, and even tragic, moment in the history of a republic that has endured for more than two centuries after being founded on the principle that no leader has absolute power or should be above laws that apply to other citizens.

Tuesday will be a grave day that could rip even deeper divides in an already estranged country, especially given that Trump supporters have already once resorted to violence in a bid to overturn the will of the people after the ex-president refused to accept his loss in a democratic election.

Utah Sen. Mitt Romney, a frequent Republican critic of Trump, on Monday faulted the ex-president for putting the country through an ordeal he said could have been avoided.

"I'm angry," Romney, the 2012 Republican presidential nominee, said. "The country is going to go through tumult as a result of one thing. President Trump didn't turn over military documents when he was asked to do so."

"Why is the country going to have to go through all this angst and tumult?"

As traumatic and unprecedented as a federal prosecution of the ex-president promises to be, it's not a complete surprise. In some ways, it's an almost logical coda to a White House term in which Trump trashed the conventions of the presidency, expressed the belief that he had "total" power in contravention of the Constitution and was twice impeached.

Trump, who maintains no wrongdoing, has not been convicted of any criminal offenses. And there's a lot that will still unfold. An indictment typically represents the best possible recitation of the evidence in a case for the prosecution. Witnesses are not cross examined in a grand jury to test for statements that might help the defendant. And it remains unclear whether this case will go to trial before the 2024 election.

But Trump has been on a collision course with the law for a long time. He's awaiting trial in another criminal case in Manhattan after pleading not guilty to falsifying business records in a drama arising from a hush money payment. He's likely to learn by the end of the summer whether he will be charged for trying to overturn President Joe Biden's election win in Georgia. Both cases are being brought by local district attorneys and not the federal government.

Special counsel Jack Smith, who brought the grand jury indictment against Trump in the classified documents case and is also investigating his behavior in the run-up to January 6, 2021, justified his decision by arguing in a rare public appearance last week that the country had one set of laws and that they apply to everybody.

His indictment, brimming with details on Trump's disastrously lax handling of classified materials, shocked many government veterans.

"If he has (done) anything like what the indictment alleges, and of course, the government will have to prove it, then he has committed very serious crimes," Trump's former national security adviser John Bolton told "CNN This Morning" on Monday.

"This is a devastating indictment. ... I think it should be the end of Donald Trump's political career."

Trump will also face a conspiracy charge at his arraignment - hence why the full title of the indictment is "The United States of America v. Donald J. Trump and Waltine Nauta." The ex-president's personal aide faces six counts, including several obstruction- and concealment-related charges.

The dilemma of whether or not to charge

Every prosecution also involves a choice. Sometimes, alleged offenses are so grave that to ignore them would risk undermining the rule of law and the fabric of society and democracy. But this impulse must also be balanced against the question of whether the national interests are best served by pursuing a prosecution.

The case of an ex-president - who has already used widening national divides as a political tool and who has claimed he is a victim of politicized criminal investigations - meant that Smith and Attorney General Merrick Garland faced a dilemma as sharp as any prosecutors in history.

Donald Trump, who is the first former US president to face federal charges, is expected to be taken into custody and placed under arrest before he's arraigned during an afternoon court hearing on Tuesday, July 13.
Donald Trump, who is the first former US president to face federal charges, is expected to be taken into custody and placed under arrest before he's arraigned during an afternoon court hearing on Tuesday, July 13. Photo credit: Getty Images

The sensitivity of the issue is multiplied by the fact that the former president is being pursued by the Justice Department of his successor in the heat of an election campaign in which he's trying to reclaim the White House from Biden.

Many Republicans, especially those in the House GOP conference, exploited this highly unusual circumstance to lay down a smokescreen for Trump last week - even before reading the charges against him. And even after the unsealing of the indictment, they escalated their bid to derail the prosecution in a demonstration of hardline partisan politics.

"The idea of equal justice is not playing out here," Speaker Kevin McCarthy said Monday, drawing false equivalencies between classified material found in the possession of ex-Vice Presidents Biden and Mike Pence, who did not block its return, as Trump is alleged to have done. (The DOJ has closed its investigation into Pence, while the special counsel probe of Biden's handling of classified documents is ongoing.)

Most Republicans appear to have calculated that with Trump as the front-runner in the GOP presidential primary, they have no political choice but to join his searing attacks on the Justice Department. Yet in a notable move on Monday, former South Carolina Gov. Nikki Haley, who is also running for the nomination, was harshly critical of Trump even as she stuck to her claims that the current Justice Department was corrupt.

"If this indictment is true, if what it says is actually the case, President Trump was incredibly reckless with our national security," Haley said on Fox News. Her comments made an implicit argument that the ex-president - whom she served as his ambassador to the United Nations - should not again be trusted with guarding the country's secrets.

Some Republicans are also pointing to the fact that Trump is being charged under the sweeping Espionage Act to try to argue that the allegations against him are less severe, since he's not actually being accused of spying or of passing classified material to a foreign power. The Espionage Act of 1917, passed during World War I, covers a broad array of offenses linked to misconduct around national defense information.

"Donald Trump, you may hate his guts, he is not a spy, he did not commit espionage," South Carolina Sen. Lindsey Graham, a loyal Trump supporter, said on ABC on Sunday.

And Florida Sen. Marco Rubio, the vice chairman of the Senate Intelligence Committee, chided Trump's handling of sensitive documents but argued that Smith and Garland had erred by not sufficiently considering whether it was truly in the national interest to prosecute.

"There's no allegation that there was harm done to the national security. There's no allegation that he sold it to a foreign power or that it was trafficked to somebody else or that anybody got access to it," Rubio said on "CBS Mornings" on Monday. "And you have to weigh the harm of that, or the lack thereof, on the harm that this indictment does to the country."

What would be lost by giving Trump a pass

Yet as painful as a presidential indictment will be for the country, a decision not to indict Trump for such horrendously careless treatment of classified documents would not just send a message that the powerful are above the law. It would also risk signaling that such cavalier behavior is acceptable - or at least is too difficult to prosecute. The consequences of such a decision for the country's intelligence agencies could be disastrous.

Typically, federal ranking officials are highly protective of classified material, knowing that even a lapse in the handling of one document could get them in trouble with the law, or land them in jail. Smith's indictment alleges that Trump kept scores of documents in a shower, a ballroom and even a bathroom at his heavily trafficked Mar-a-Lago resort. It also alleges that he showed off a hugely sensitive military document to several guests at his Bedminster golf club and admitted that he couldn't declassify it since he was no longer president. Some of the material he had refused to give back to the government related to nuclear capabilities of the US and foreign countries.

This stunning disregard for the nation's secrets raises huge questions about Trump's past conduct and appears to bolster the government's decision to resort to a criminal investigation to retrieve the material.

More broadly, it also raises a question that voters, and not the courts, will decide - whether Trump should be ever entrusted with such material as president again. It's a question for the 2024 election, but could also be teased out in a trial.

Trump's behavior appears to represent an extraordinary case of a commander in chief and guardian of the nation's most precious secrets putting his personal motivations - whatever they are - above the national interest in an abuse of the public trust.

"Knowing what we know now, in addition to all the details in the indictment as this unfolds, is there any question now that Donald Trump is a clear and present danger to the United States of America?" asked Valerie Plame, whose cover as a CIA officer was blown by members of the Bush administration in apparent retaliation for criticisms of its Iraq policies by her late husband, former ambassador Joseph Wilson. Plame was speaking to CNN's Jake Tapper last week, and added that for "any American to continue to pretend otherwise is simply unrealistic."