Republican Senators Split on DOJ’s Trump Indictment

GOP Sen. J.D. Vance of Ohio was calm but outraged talking to reporters in the Capitol Monday evening about last week’s federal indictment of Donald Trump.

“Are we really trying to throw the president of the United States in jail because he didn’t cross enough ‘T’s’ on the way out?” Vance said one day before Trump appeared in a federal  court in Miami for his arraignment. Not even the charges the former president obstructed justice and lied to federal agents give the Ohio Republican pause in defending Trump.

“Obstruction of justice is fundamentally: You’re obstructing an investigation into an underlying crime. If I think the underlying crime is bogus, then I don’t think the obstruction charge is valid either,” says Vance, who vowed on Tuesday afternoon to place procedural holds on nearly all Department of Justice nominees “until Merrick Garland stops using his agency to harass Joe Biden’s political opponents.”

One thing even a Trump loyalist like Vance is willing to admit is that the indictment—outlining 37 counts of willfully retaining national-defense related classified documents in his Palm Beach home after leaving office, obstructing FBI and grand jury investigations regarding those documents, and concealing his continued efforts to retain the documents after a grand jury had subpoenaed them—contains some “serious” accusations. In fact, most Republican senators appear united in this assessment.

But the indictment has divided the Senate Republican conference between those who say they want to see how charges play out and those who have already determined the case is a weak-on-the-merits witch hunt against the former president.

The arguments from Trump’s Senate defenders boil down to three types: the charges are not a big deal, the prosecution is partisan, and Democrats have done the same or worse.

Pressed on the obstruction charges in particular, many GOP senators pointed to former FBI Director James Comey’s July 2016 recommendation that the Justice Department not prosecute then-presidential candidate Hillary Clinton even though his investigation found “evidence of potential violations of the statutes regarding the handling of classified information” on the private email server she maintained while secretary of state. 

“What do you call deleting 30,000 emails on a private server by the former secretary of state? I think President Trump made the right call not to pursue her prosecution either,” says GOP Sen. Ron Johnson of Wisconsin, who thinks the Trump case should have been handled “civilly.” (Barack Obama was president when the Department of Justice declined to prosecute Clinton, though Trump’s DOJ also declined to indict her after he took office.)

Others expressed concern that the indictment signals selective enforcement by a partisan Justice Department aimed at targeting the current frontrunner for the Republican presidential nomination. They referenced both Clinton’s 2016 case and reports that President Joe Biden stashed multiple tranches of classified documents in unsecured locations including his garage while serving as vice president as evidence that the DOJ is being unfair in its prosecution of Trump. Biden’s case is still being investigated by special counsel Robert Hur.

“It’s fascinating that Hillary Clinton was busting up cell phones and bleaching her hard drive, and Joe Biden has boxes of classified documents in the garage that Hunter Biden has access to—we haven’t heard anything from the Justice Department about that,” says GOP Sen. Eric Schmitt of Missouri.

For Vance, the merits of the case boil down to the underlying crime of willfully retaining the documents in the first place. He tells The Dispatch that the president has “plenary control” over all classified documents that are produced by the executive branch, and thinks the fact that the documents were taken under his instruction demonstrates the president “did take some actions that would point towards declassification.”

That defense comes amid indictment allegations that after leaving office in July 2021, Trump “showed and described” a classified document about a U.S. “plan of attack” with multiple individuals who did not have security clearances. According to the indictment, Trump said “as president I could have declassified it,” and, “Now I can’t, you, know, but this is still a secret.”

On the other hand, Republican senators in the wait-and-see camp emphasize the gravity of the charges without weighing in on whether or not the Justice Department was right to levy them in the first place.

“The accusations are very serious, and now we find out whether or not they have a case,” GOP Sen. Mike Rounds of South Dakota tells The Dispatch. “Like everybody else, he’s got a right to maintain his innocence unless he is convicted.”

“We’re just gonna have to see how well it stands up to a healthy defense,” says GOP Sen. Thom Tillis of North Carolina in response to questions about the obstruction charges in particular.

Only a handful of Republican senators have carved out a distinctly critical posture toward Trump regarding Thursday’s indictment.

In a Friday statement, longtime Trump critic and GOP Sen. Mitt Romney of Utah said the former president is “entitled to the presumption of innocence” while arguing that he “brought these charges upon himself by not only taking classified documents, but by refusing to simply return them when given numerous opportunities to do so.” GOP Sens. Lisa Murkowski of Alaska released a similar statement Monday arguing that “the charges in this case are quite serious and cannot be casually dismissed.” Sens. John Cornyn and John Thune echoed similar concerns the following day.

The divergence among members of the Senate GOP conference reflects how the details of this particular indictment make it harder for some establishment Republicans to reflexively get behind Trump—even as GOP voters appear to be siding overwhelmingly with the former president.

Some Republicans who have criticized Trump in the classified documents case—presidential candidates Asa Hutchinson, Nikki Haley, and Chris Christie among them—have zeroed in on the national-security implications of Trump’s decision to willfully retain classified documents that, according to the indictment, contain sensitive defense and nuclear weapons-related information.

Others have sought to distinguish this particular case from the numerous investigations Democrats have pursued against him in the past. Earlier this year, Manhattan District Attorney Alvin Bragg indicted Trump on charges related to falsifying business records in connection with hush money payments to a porn star during his 2016 presidential campaign. Even Romney characterized that indictment as prosecutorial overreach.

And former Attorney General Bill Barr—who served under Trump—told Fox News Sunday that “his adversaries have obsessively pursued him with phony claims” but blasted the notion from many Republicans that classified documents indictment ought not to be taken seriously.

“If even half of it is true, he’s toast,” Barr said. “I have been at his side defending against them when he is a victim. But this is much different. He is not a victim here. He was totally wrong that he had the right to have those documents. Those documents are among the most sensitive secrets the country has.”