Arraignment Day: The Legal and the Political Cases

What to look for from the courts and how Donald Trump’s indictment might—or might not—affect the race for 2024.

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Former President Donald Trump arrives at the Miami International Airport June 12, 2023. Trump is scheduled to appear in federal court for his arraignment on charges including possession of national security documents after leaving office, obstruction, and making false statements. (Photo by Win McNamee/Getty Images)

The Legal Case

As former Attorney General Bill Barr said, “This would have gone nowhere had the president just returned the documents. But he jerked them around for a year and a half.”

Indeed. 

By now, I suspect you’ve read enough about Donald Trump’s indictment by the Justice Department and how detailed it is and how damning it is and yada yada. So let’s talk defense. 

I want to emphasize a couple things first. Trump isn’t charged with taking the documents from the White House. He’s charged with 1) keeping the documents after federal law enforcement asked for them back, 2) hiding the documents after they asked for them back, and 3) lying about it. 

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  1. Avatar photo
    Ben Connelly

    “ The assumption was that Christie would attack Trump during the primary, and he is. But from a strategic standpoint, Christie’s attacks on Trump serve more to highlight the wishy-washiness of the other candidates’ statements.”

    Hmm. That seems overly pessimistic but it could be correct. We will see. Otherwise, great analysis. Highly interesting.

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  2. Halvor

    Nicki Haley could say, "Super-vicious liberals carry their accusations into the courthouse instead of honestly facing Americans on Truth Social, FOX, and campaign rallies, like loyal deplorables do."

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    Dave in Houston

    Great meeting you last night in Houston! I love the statistics lesson at the end. I didn't know about the challenge to the PRA, but it seems the Espionage Act would still apply?

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  4. Shadraq

    Let's face it - Biden has dementia and Humpty Trumpty has terminal narcissism. Neither are fit for the presidency.

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    1. Kbg

      And yet here we are the two likely nominees!?

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    Azlefty

    The average often diverges from the median.

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    J. Eric

    Some tasty dessert today. Haha. Thanks

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  7. Avatar photo
    Sad Trombone

    *New*
    CBS News poll analysis: GOP primary voters still see Trump as best shot against Biden..

    Sarah, this is just chin stroking by the Washington courtiers. GOP primary voters don't think Trump has the best shot any more than Black Americans thought OJ was actually innocent. If a pollster calls you have to stick up for the tribe. I'm a NeverTrumper, so I'm going to vote for Christie if I get the chance, but I know even my Trump admiring neighbors realize renominating him would put Biden, on the precipice of dementia, back in office with Kamala waiting and ready to burn the country down. When voting day comes the majority will go for someone else. The problem is we don't have an establishment with backbone to veto an unfit nominee the way Sidney Hillman took Henry Wallace off FDR's ticket, against Roosevelt's wishes. Is there any way a critical mass of superdelegates or party leaders could change the rules if Trump does manipulate the winner-take-all rules to get the nomination?

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    1. Marc Whipple

      I am no fan of Kamala Harris, and don't think she would be a good President. But saying she is "waiting and ready to burn the country down?" Care to explain what you think she would do as POTUS that would be so destructive?

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        Sad Trombone

        For all the justified criticism of Jan 6, there has been no outrage at Harris providing admission tickets to CodePink to terrorize the Kavanaugh Senate hearings. She does not believe in democracy any more than Trump. She celebrated raising bail funds for arsonists during the George Floyd riots and has giggled her way though so many cringe worthy statements that putting her in the President's chair would hurt this country for decades.

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        1. Marc Whipple

          I hope Harris is never President, but I would not put her anywhere near Trump's category as a threat to democracy. Unlike Trump, she is not a bat shit crazy narcissist. She is more comparable to DeSantis - awkward individual operating toward the outer edges of guardrails of democracy, but still well within, and constrained by, those guardrails.

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            Sad Trombone

            I reluctantly agree, she's not as far beyond the Van Oort belt as Trump, but I don't think that should be the yardstick. She believes that violence delivered on your opponents is a valid form of expression as long as they're "evil," she believes her side has a monopoly on virtue, and she believes progressive values should be imposed by any means necessary.

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      2. Hikingguy

        11 hours since you posted this very sensible question. No reply. H'mm. I begin to see a pattern here.

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          Sad Trombone

          See above, most of us don't read replies or react immediately.

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  8. Avatar photo
    Paul Hoover

    Ms. Isgur,
    I appreciate your writing. It is clear, concise, and insightful, yet you “toss us a bone” of humor and self-deprecation as the topic may require. I always close the browser tab thinking, “yeah, I learned something here.”
    Thank you!

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  9. Avatar photo
    Stephanie

    Thank you, Sarah. Your perspective is valuable.

    As for Judge Cannon, I hope your optimism's justified.

    She got a bad name last year when she was reversed twice. Once is an honest mistake; twice is a coincidence; will there be a 3rd time?

    I didn't remember all the details. On lawfareblog.com, I did find a long critique of her rulings, at the time the DOJ filed their appeal: https://www.lawfareblog.com/everything-wrong-judge-cannons-ruling

    Perhaps it was her inexperience. This is an extremely consequential case for someone so inexperienced, so I hope she bones up on national security law this time.

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    1. Avatar photo
      Bill Dyer (aka Beldar)

      Suggestions that Judge Cannon was "rebuked" by the Eleventh Circuit are unfounded. The Eleventh Circuit's per curiam opinion robustly refused to adopt the expansion of jurisdiction sought by Trump and his lawyers. It doesn't accuse Trump and his lawyers of making a frivolous argument, though, nor of other punishable conduct. And it certainly doesn't fault or criticize District Judge Cannon for being persuaded by those arguments. https://scholar.google.com/scholar_case?case=10915598169263830153

      This is a bread-and-butter reversal, not egg on the face of the trial judge. She'll presumably be more skeptical in the future about arguments based upon the trial courts' "inherent authority," but that she got suckered by his lawyers once doesn't mean she's reflexively biased in Trump's favor.

      We have appellate courts to review trial courts, and they definitely do NOT operate on the "once is an honest mistake" theory you offer, Stephanie.

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        Stephanie

        Um, you are putting “rebuked” in quotes. You weren’t quoting me, as I never said it.

        As for “once is an honest mistake,“ I was not referring to anything in appeals court might think or say. I’m talking about public perception.

        From what I’m reading, national security law is quite complex, and it’s not something she has much experience with. I think she’s probably going to be getting some training on the subject, so I’m not that concerned about her myself.

        But I can see why many people are. She seemed to show far too much deference to Trump.

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          Bill Dyer (aka Beldar)

          You didn't use that word, no, nor did I attribute the quote to you, but I apologize for any implication to the contrary.

          Others have used that term, or similar terms like "smack-down" or "chastise." That was actually the subject of discussion between Kevin Williamson and Price St. Clair on the most recent Dispatch Live podcast that I was listening to last night, and I probably ought to have referenced that rather than leaving an inference that I was quoting you.

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  10. Elmore4005

    The Trump cult is alive and well. Nothing he did or does affects their worship of him. Unless he has a health event, he will be the 2024 Republican nominee. Every candidate other than Christie and Hutchison is afraid of him. And since it's legal for him to he run for president from prison, I don't see anyone beating him. His cult will not leave him.

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    1. Hikingguy

      I think you're right about the primaries. Come the general election, Trump and the GQP get wiped out. I can hardly wait. You're right about Hutchinson and Christie. The rest are just cowards, afraid to anger the mob of loons that make up Trump's fevered base.

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        Mudskipper

        I hope you are right. I fear you are wrong.

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      Paul Hoover

      I forget now where I saw it, but the question was to the effect of “if he’s sentenced to prison, does the Secret Service detail also end up behind bars?”

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