A few days have passed since the Justice Department informed former President Donald Trump that he had been indicted. Some of the main issues involved, both legal and political, are becoming clearer than they were in the first frenzied hours after the news broke.
First, the politics. The early indications are that predictions that Trump supporters would rally around him in the event of an indictment appear to be true. A poll by CBS News and YouGov found that 76% of likely Republican primary voters said that the indictment was politically motivated. When asked if the indictment would change their view of Trump, 61% said it would not change their view at all, while 14% said it would change their view of Trump for the better. Just seven percent said it would change their view of Trump for the worse, and 18% said it depends, meaning they weren’t really sure.
In a Reuters-Ipsos poll, 81% of Republicans said “politics was driving the case.” “The indictment did not appear to dent Trump’s standing in the Republican nominating contest for the 2024 presidential election,” Reuters reported. So the answer, at least for now, to the question of whether the indictment would hurt Trump among Republicans is no.
There are two other groups who factor into the political calculation — the Republican presidential candidates and GOP lawmakers on Capitol Hill. Reporters being the way they are, almost every prominent Republican within a mile of a microphone is being asked to declare a position on the Trump indictment.
The Republican presidential contenders are in a difficult spot. They know that most Republican voters believe Trump has been unfairly targeted for years. And they know the numbers above, in which large majorities of Republicans said the latest charges against Trump are politically motivated. So, on one hand, they have an interest in telling voters what they want to hear, which is that Trump is being politically targeted.
On the other hand, they are running against Trump, not with him. If the indictment ultimately weakens Trump politically, his Republican opponents will benefit. So now, we are seeing some of those candidates try to walk a fine line — decrying what some call the weaponization of the government against Trump but at the same time acknowledging that the charges against him are serious.
Immediately after the indictment, Gov. Ron DeSantis, the leading challenger to Trump, tweeted that, “The weaponization of federal law enforcement represents a mortal threat to a free society.” DeSantis suggested that Trump was a victim of the “uneven application of the law.” But at the same time, DeSantis noted that he, DeSantis, had to scrupulously observe classification rules when he was in the U.S. Navy. The implication was clear: the president should observe those rules, too.
Nikki Haley and Sen. Tim Scott have both said the case against Trump is serious, with Haley saying that if the allegations are true, then Trump was “incredibly reckless with our national security.” Mike Pence, Trump’s former vice president, has chosen to demand more information. “The American people have a right to know why it was necessary for the first time in history to bring an indictment of this nature against a former president of the United States,” Pence said.
On Capitol Hill, some of Trump’s strongest supporters remain steadfastly on his side. That’s not a surprise, given that some of them are from districts in which Republicans are even more supportive of the former president than the poll suggest.
Next, the legal side. The first thing to say is that a lot of respected legal voices believe the indictment is a very serious document. “I was shocked by the degree of sensitivity of these documents and how many there were,” former Attorney General William Barr told Fox News. “If even half of it is true, then he’s toast.”
That doesn’t mean Trump doesn’t have defenses. For example, information at the heart of the indictment appears to have come from Trump’s attorneys, whom special counsel Jack Smith forced to testify in spite of attorney-client privilege. Smith received court approval, but as Lawfare noted, a trial will examine that approval and “raise questions about the limits of one of the most sacrosanct principles in our legal system, attorney-client privilege.”
Trump can also argue that, as president, he was allowed to decide what documents should be sent to the National Archives as “presidential records” and what documents he would keep. What if he kept records that were clearly presidential in nature? He might argue that he still had that authority, and his defense will surely explore the limits, if any, of that authority.
Then there is the question of the seriousness of the documents Trump is charged with mishandling. The indictment says they are among the government’s most sensitive secrets. This is how the indictment describes them:
“The classified documents Trump stored in his boxes included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack.”
What could be more serious than that? On the other hand, the description is still vague. It could, in fact, describe lots of information that is available in the public domain. A Trump trial, if there is one, could reveal how widely the specific information cited by Smith was distributed inside the U.S. government. Was it extremely closely held? Or much more widely available? That could make a difference in the jury’s assessment of the seriousness of Trump’s actions.
Finally, Trump defenders — perhaps not Trump’s lawyers in court, but Trump’s defenders — will argue the big picture, that the Biden administration has taken a dangerous step in indicting a former president. “The Biden administration crossed a constitutional Rubicon this week,” Berkeley law professor and former Bush administration Justice Department official John Yoo writes. “For the first time in our history, an executive branch held by the incumbent political party indicted the leading presidential candidate of the other main political party.”
More from Yoo: “Biden administration officials must explain why prosecuting Trump for misuse of classified documents justifies disregarding two centuries of constitutional practice.”
That is perhaps the most important question of the entire Trump prosecution: Should it be done at all? Were there other, less constitutionally consequential, ways of dealing with Trump’s behavior? The Biden administration has given its answer. The final resolution of that question will take a long time.
Byron York is chief political correspondent for The Washington Examiner. For a deeper dive into many of the topics Byron covers, listen to his podcast, The Byron York Show, available on the Ricochet Audio Network and everywhere else podcasts are found.