The News
Powerful Republicans reacted in two ways to Donald Trump’s indictment Tuesday: With strident defenses, or extremely careful avoidance.
Top party figures voiced immediate solidarity with a former president facing what Speaker Kevin McCarthy called a “grave injustice.” But Trump’s most important rival to lead the party, Florida Governor Ron DeSantis, walked a careful line, attacking federal prosecutors in a general sense while remaining silent on the president’s alleged felonies.
As Trump and his team dined at Bedminster and listened to Elvis Presley songs, according to a person present at the dinner, the rest of the country sought to understand the seven felony charges he’ll reportedly face, and the political consequences of this new, more serious indictment.
Five Big Questions
Will Republican voters care more about this than the last one? Trump surged in the primary polls after the Manhattan district attorney charged him over hush money payments. But his calls for mass protests also fizzled and the political conversation quickly moved on. Will these more serious charges generate a more sustained reaction in his defense, or finally exhaust Republican voters?
Can Trump avoid making this worse? Trump is using the same legal playbook he always has: Play to his base, attack the prosecutors. The tactics worked when he was president, but since then his public statements have left a long trail for state and federal prosecutors, and cost him $5 million (and counting) in a jury finding of defamation and sexual abuse.
Why did Donald Trump cling to the classified documents? For all the ink spilled on this case so far in the press and in court as well as the many thousands of words Trump has devoted to his defense, it’s still not entirely clear why he even wanted to keep the documents in the first place (and why he went to such lengths to do so when the National Archives came calling). Are we going to find out?
How soon could the case go to trial? This will depend in large part on the judge, who will be assigned after the indictment. The timing is “right up against the line at which it is conceivable” Trump could stand before a jury before the 2024 general election, former Trump lawyer Ty Cobb told CNN. Trump, if convicted, could seek bail pending appeal — but granting that would be up to the same judge.
Can he campaign while he’s on trial — or after he’s convicted? Federal prosecutions almost always end in conviction, and defending against them can be all-consuming. Defendants sometimes face travel restrictions. Can Trump really run for president at the same time? Would he continue to run from prison — as is now technically possible, if highly unlikely — a la Eugene V. Debs?
The View From Legal Experts
The charges against Trump haven’t actually been unsealed yet, but he is said to face a seven-count indictment. Trump’s attorney Jim Trusty said on CNN that his legal team received a summons from the DOJ that indicated charges include making false statements, obstruction-related charges like witness tampering, conspiracy, and an Espionage Act violation. Other outlets reported that one of the charges is willful retention of national defense information, which is part of the Espionage Act statute.
“I have never seen [federal prosecutors] fail against a current or former government official” when charging violations of the Espionage Act, said national security lawyer Brad Moss.
It’s the first time a former president has been charged with federal crimes. Jack Sharman, a defense attorney who served as a special counsel to Congress for the Whitewater investigation, told Semafor the moment felt “uncharted and a little bit chaotic in the way that Watergate in the latter days felt.”
Taken together, the charges would carry a weighty sentence in the event of a conviction: a violation of the illegal retention statute, for instance, calls for a maximum penalty of 10 years in jail, while witness tampering carries a maximum of 20 years.
News of the conspiracy charge immediately raised questions in legal circles about whether someone else would be charged, or had agreed to cooperate in the investigation in order to lessen their exposure.
“I’m guessing there has to be another person or persons that are either cooperating or may be indicted with him,” Sharman said.
The View From The 2024 Field
For the second time this year, Trump’s opponents in the 2024 primary found themselves facing the tricky question of just how forcefully to defend the frontrunner they are ostensibly trying to beat. Some quickly rushed to his side: entrepreneur Vivek Ramaswamy promptly vowed to pardon Trump if elected. But others were comparatively cautious.
DeSantis tweeted that “the weaponization of federal law enforcement represents a mortal threat to a free society” and asked why prosecutors were “so zealous in pursuing Trump yet so passive about Hillary [Clinton] or Hunter [Biden]?” But he did not weigh in directly on Trump’s guilt or innocence. South Carolina Sen. Tim Scott similarly denounced “the weaponization” of the Justice Department against Trump over the last “several years,” without going so far as to promise a pardon.
Speaking at a campaign stop in Waukee, Iowa on Thursday, hours before the indictment, Vice President Mike Pence was more diplomatic toward prosecutors, saying that the “unprecedented” DOJ action must meet the “high threshold that would justify what would likely result in a divisive action in the country.”
In some countries, he said, “one individual comes to power and they immediately turn the criminal justice system on their predecessor.” He added that he hoped that wasn’t the case here. “I believe in the rule of law, and I believe in equal treatment under the law,” Pence said. He hasn’t said anything since, though, and dropped a planned appearance on Fox News host Sean Hannity’s show last night.
The more stridently anti-Trump candidates held out the possibility that he might actually be guilty. “We don’t get our news from Trump’s Truth Social account,” tweeted former New Jersey Gov. Chris Christie. “Let’s see what the facts are when any possible indictment is released. As I have said before, no one is above the law, no matter how much they wish they were.” Former Arkansas Gov. Asa Hutchison said that while Trump “entitled to the presumption of innocence,” he should “end his campaign” to deal with the charges.
The View From Democrats
The White House, unsurprisingly, is not saying anything. They don’t want to be within 10 miles of this prosecution (luckily for Joe Biden, the charges are being filed in Florida). A White House official told Semafor that West Wing aides received no heads up on the charges and instead learned from media reports with the rest of America.
Biden has been anxious throughout his presidency to maintain the perception of the Justice Department as independent from political influence.
“I have never once — not one single time — suggested to the Justice Department what they should do or not do, relative to bringing a charge or not bringing a charge,” Biden told reporters hours before news of the indictment broke when asked about Trump’s repeated attacks on the DOJ.
That doesn’t mean Biden won’t be queried endlessly about developments in the case, which could prove awkward for him when he tries to keep the focus on things like semiconductor plants and electric vehicle charging stations. He also faces his own — so far much quieter — special counsel investigation into classified documents found at his Delaware home and former office. Democrats don’t see a problem with the attention being on Trump’s legal troubles, though.
“In the primary it’s going to turn into even more of a MAGA ass-kissing contest as Republicans continue to keep holding him above the law and as the face of their party,” said Democratic strategist Eddie Vale. “For Biden, it lets him keep running as the normal person who is actually focused on helping people.”