Trump documents case is a test for the justice system he wants to dismantle

Donald Trump’s federal indictment represents far more than a battle between the government and an ex-president over national security secrets that he kept in a stunningly insecure fashion.

When Trump appears in court in Miami on Tuesday to be arraigned, a new clash will unfold between a judicial system rooted in the core principle that no one is above the law and an ex-president who has vowed, if returned to the White House, to purge the system of the accountability he now faces.

A 37-charge indictment alleges that Trump mishandled national defense documents after he left office and tried to conceal his possession of highly sensitive classified materials from government investigators. It teems with evidence including photos and details of audio tapes.

While Trump is entitled to the presumption of innocence like any other American, the indictment appears to underscore his personal belief that the law does not apply to him and that he has the power to do exactly as he likes. That behavior defined his administration and post-White House life.

“This indictment really is a reflection of the former president’s arrogance, his disdain for the rule of law, which is so repugnant to people who have worked in law enforcement, who have worked for the Constitution, bipartisanly over the years,” said former Watergate special prosecutor Richard Ben-Veniste on CNN’s “The Lead with Jake Tapper” on Friday.

Even Trump’s own former attorney general, William Barr, called the indictment “very damning” on “Fox News Sunday,” pushing back on the former president’s claims that he’s a “victim” of political persecution. “He had no right to maintain them and retain them,” Barr said of the documents. “And he kept them in a way in Mar-a-Lago, that anyone who really cares about national security – their stomach would churn at it.”

Countering Trump’s belief in his own omnipotence is at the core of this case. As special counsel Jack Smith said in a rare public appearance on Friday: “We have one set of laws in this country, and they apply to everyone.”

This case, however, is unfolding in the middle of a presidential campaign in which the twice-impeached and now twice-indicted Trump is running on a platform of gutting the Federal Bureau of Investigation, the Justice Department, intelligence agencies and any other federal bureaucracy designed to ensure the powerful obey the law.

Late last year, he called for the “termination” of the Constitution, including all “rules, regulations and articles.” And he’s pledged on day one of a new administration to direct the DOJ to “investigate every radical district attorney and attorney general in America” for what he claims is the illegal and racist enforcement of the law. Trump has already pleaded not guilty to falsifying business records – charges that arose from Manhattan District Attorney Alvin Bragg’s investigation of a hush money scheme. And he’s waiting to hear whether he will be charged in another special counsel investigation into the run-up to January 6, 2021, and a separate investigation into his attempt to overturn President Joe Biden’s 2020 election victory in Georgia led by Fulton County District Attorney Fani Willis.

Trump has called for a “truth and reconciliation” commission to eradicate “deep state” spying, corruption and censorship – a code for what he claims is the weaponization of the justice system against him by political opponents. And he has styled his entire 2024 campaign as a drive for “retribution” – previewing a second administration that would be certain to test the rules and conventions designed to restrain the president even more than in his first term. Trump’s quest for limitless personal power recalls his claim in office that the power of the president is “total” – a false contention that the Constitution was written specifically to prevent.

Reflecting Trump’s influence on the Republican Party, other GOP presidential candidates have also promised to flush out the FBI. Florida Gov. Ron DeSantis, for instance, has pledged to fire the bureau’s director, Christopher Wray – a Trump-appointed Republican – on his first day in the Oval Office if he is elected next year.

At the North Carolina State GOP Convention on Saturday, on his first campaign swing since news of the federal indictment, Trump escalated his assault on America’s system of justice. “I stand before you today as the only candidate who has what it takes to smash this corrupt system and to truly drain the swamp,” he said.

A GOP attempt to discredit the Justice Department

Trump, who’s set to deliver remarks and hold a fundraiser at his New Jersey golf club after Tuesday’s court appearance, is getting help from Republican allies in attempting to discredit the legal institutions that seek to hold him accountable. They’re trying to win the classified documents case in a court of public opinion – in a way that may influence a future jury – long before the ex-president faces a trial.

House Judiciary Chairman Jim Jordan, for instance, claimed on CNN’s “State of the Union” on Sunday that Trump as president had simply declassified all documents at his Mar-a-Lago resort – despite a lack of evidence he had done so.

“He decides. He alone decides. He said he declassified this material. He can put it wherever he wants. He can handle it however he wants. That’s the law,” Jordan told Dana Bash.

In the indictment, however, Trump is shown as saying he did not declassify some secret information that he kept and that as an ex-president he no longer had the power to do so. Not to mention, the law does not require documents to be classified for a crime to have been committed.

Setting the tone for the GOP’s attempt to subvert the legal process, House Speaker Kevin McCarthy accused the Biden administration last week of being guilty of a “brazen weaponization of power” by targeting the current president’s possible future general election opponent.

There are genuine questions over whether the indictment of Trump is in the long-term national interests of the country, given the extraordinary strain it is likely to put on the political and judicial systems and the certainty that yet another election will be tainted in the eyes of millions of voters who believe that Trump is a victim of persecution. It should also be noted that an indictment is only a selective airing of evidence in the case that benefits the prosecution and has not yet faced the test of cross-examination in court.

Yet GOP criticisms deliberately ignore the evidence in the indictment of a staggeringly lax treatment of critical secrets, including about nuclear weapons. They also distort the indictment as an example of the Justice Department targeting a political opponent of the current president, despite the fact that it followed long-established legal procedures and was handed down by a grand jury in Trump’s home state of Florida, which found probable cause that a crime had been committed.

Barr – whom Democrats contend shielded Trump by misrepresenting the findings of the Mueller report into his 2016 campaign’s links with Russia – said Sunday that the ex-president’s complaints about his treatment were not merited.

“This idea of presenting Trump as a victim here, a victim of a witch hunt is ridiculous,” the former attorney general said on “Fox News Sunday.”

“Yes, he’s been a victim in the past. Yes, his adversaries have obsessively pursued him with phony claims. And I’ve been at his side defending against them when he is a victim. But this is much different. He’s not a victim here,” Barr said.

Why comparisons to Pence, Biden and Clinton cases do not apply

Many Republicans argue that Trump is being unfairly singled out by the judicial system since Biden and Mike Pence were also discovered to have classified documents dating from their vice presidencies.

But the cases are distinct because the two former vice presidents cooperated with authorities and returned the material. The Trump indictment allegedly shows the former president concealing evidence of documents in his possession that belonged to the government and that represented a risk to national security given their haphazard storage at his Florida resort. The DOJ has closed its investigation into Pence, but a special counsel probe into Biden’s handling of documents is ongoing.

Others have pointed out that former Secretary of State Hillary Clinton was not prosecuted over classified material found on her personal email server. While the FBI found that she had been careless with the material, it said there was no evidence that she committed a crime. And many Democrats blamed ex-FBI Chief James Comey’s public statements in the case days before the 2016 election for helping to elect Trump.

The latest Republican attacks on the judicial system threaten to undermine one of the pillars of American democracy, which worries many legal observers, including former Bush administration Attorney General Alberto Gonzales.

“It is disappointing, quite honestly, because an attack on the Department of Justice is an attack on the rule of law. And that’s not good for this country,” Gonzales told Tapper on Friday.

Trump tries to win the political battle, but the legal one will determine his fate

Given that Trump is an ex-president running for president, this case will play out in two separate arenas – the courts and the campaign trail. The fact that the matter will be heard in Republican-run Florida could represent a risk for Smith given the need to secure unanimous jury verdicts.

On the political front, it’s too early to say how this new case will impact the election. More than 60% of Americans say the federal charges Trump faces are very or somewhat serious, according to an ABC News/Ipsos poll fielded after news of the indictment, although about half say they see the charges against Trump as politically motivated. Similarly, in a CBS News/YouGov poll, 69% of Americans feel it would be a security risk if Trump “did have documents regarding U.S. nuclear systems or military plans in his home after leaving office,” yet the public splits over whether the national security risk (38%) or political motivations behind the indictment (38%) are a bigger concern. But most immediately for the GOP primary, neither poll suggests much movement in overall views of the former president, particularly among Republicans.

After his first indictment in the Manhattan case earlier this spring, Trump’s polling numbers in the GOP race appeared to rise – underscoring how Republican voters have bought into his narrative about being politically persecuted.

At a DeSantis campaign event in Tulsa, Oklahoma, on Sunday, attendees appeared to be convinced of claims by Trump and conservative media figures that he is being unfairly singled out. Kim Bielenberg, for instance, told CNN’s Kit Maher that while she liked Trump and thought it was time for a new candidate, the former president was being maligned. “(What) the Democrats are doing to Trump, it’s just too – it has nothing to do with running the country,” she said. “It just doesn’t seem like it’s a very fair playing field.”

At the same time, however, photos of classified documents strewn carelessly around the ex-president’s home – in bathrooms, showers and on stage in a ballroom – could help Democrats drive home their argument that Trump, if he’s the eventual GOP nominee, is deeply unfit to protect the nation’s security as commander in chief.

This week, however, Trump will be given his first chance to defend himself in a court of law using the right to a speedy and fair trial that is guaranteed by the Constitution that he wants terminated.