Trump faces new criminal charges over classified files mishandling

Former US President Donald Trump faces criminal charges for the second time in three months, this time concerning his handling of classified files after leaving the White House. Thousands of documents were seized in an FBI search at his Florida estate Mar-a-Lago last year, including around 100 marked as classified. Legal experts suggest that Trump, who plans to run for president again in 2024, could face prison if convicted of mishandling the documents or obstructing the investigation into whether he did. Trump has consistently denied any wrongdoing and expressed disbelief that such a thing could happen to a former US president.

Trump stated on his social media platform, Truth Social, that he has been asked to appear at a federal courthouse in Miami on June 13. The US Secret Service will meet with the former president’s staff and Secret Service officers assigned to him on Friday to plan Trump’s travel to court in Florida and his appearance for arraignment. Ahead of the hearing, US Secret Service agents will assess threats to the federal courthouse in Miami and its surroundings, and collaborate with court officers to form a security plan.

Before news of the indictment broke, Carl Tobias, a law professor at the University of Richmond in Virginia, told the BBC that Trump’s arrest would likely follow a similar pattern to his arrest in April on charges of falsifying business records related to alleged hush-money payments made to Stormy Daniels. At that time, Trump handed himself over to authorities in New York and appeared in court to plead not guilty. He was fingerprinted, but not put in handcuffs or have a mugshot taken. Tobias said it was improbable that Trump would be handcuffed or have his mugshot taken this time, given his stature as a former president and the slim likelihood that he is a flight risk.

Once Trump’s arrest paperwork is completed, he will be considered under arrest and in custody. After the paperwork is processed, he will be arraigned, hearing the charges and entering a plea in court. When Trump left office in January 2021, he was supposed to hand over all presidential records, which are considered federal property. It is illegal for officials, including former presidents, to remove or keep classified documents at an unauthorised, insecure location. However, just months after Trump left the White House, the US National Archives realised that some records were missing. These included some of Trump’s correspondence with North Korean leader Kim Jong-Un and a letter that former president Barack Obama left for Trump when he left office.

The agency requested the records, and some were handed over. In August 2022, the justice department searched Trump’s Mar-a-Lago property, seizing a further 11,000 documents, some of which were marked as classified or top secret, and some which were marked “TS/SCI”, a designation for material that could cause “exceptionally grave” damage to US national security. Other items included a binder of photos, a handwritten note, unspecified information about the president of France, and a clemency letter written on behalf of long-time Trump ally Roger Stone.

Prosecutors have yet to confirm the exact charges Trump is facing. His lawyer, Jim Trusty, told CNN the former president had received details of the charges in a summons document. He said they included conspiracy, false statements, obstruction of justice, and illegally retaining classified documents under the Espionage Act. Several of these are considered serious charges. Espionage Act violations can carry up to 10 years in prison, while obstruction of justice, also a felony, carries a maximum penalty of 20 years.

It is by no means certain that Trump would be convicted. Some legal experts believe it would be difficult to prove that he committed a crime. For the obstruction of justice charges, for example, the law notes that prosecutors would have to show that Trump or members of his team “knowingly” mishandled materials “to impede, obstruct or influence” the investigation. It may ultimately prove difficult to prove that Trump knew what was happening. He could also feasibly argue that his staff mishandled the documents without his consent.

Trump announced his impending indictment on social media on Thursday night. The justice department has yet to comment. In a series of Truth Social posts and a video, Trump repeatedly said he was innocent and characterised the indictment as “political warfare” against him before the 2024 election. He has used various arguments to defend his handling of the documents, including that he declassified the documents before they were discovered. While presidents have previously declassified documents directly, there is no evidence that Trump did so or followed any existing procedure. Trump has also argued that some of the documents were personal and protected by executive privilege. This would mean that there was no requirement to turn them over to the national archives when he left office, the very premise of the case. The argument has largely been dismissed by legal experts.

David Super, a professor at Georgetown University Law Center, told the BBC that he believes Trump’s lawyers are likely to argue that the former president was just a “really bad file clerk”. A key aspect of the case could be an audio recording in which Trump reportedly said he knowingly kept documents and acknowledged he was limited in his ability to declassify them. If this were true, Super said that “it pretty much sinks him because that shows that he knows the things he’s been saying in public are not true”.

It is unclear what impact the new charges might have on Trump’s popularity with his supporters. His arrest in New York had negligible impact on his popularity, and he remained the clear frontrunner for the Republican presidential nomination for the 2024 general election. From a legal standpoint, experts believe that the indictment, or even a possible conviction, does not present an impediment to his bid to become president again. Under US law, nothing prevents an individual from running for office if facing criminal charges.

“It could certainly be a problem for him politically if he’s indicted, and certainly, if he’s convicted. People may think twice about whether they want to vote for him,” Tobias said. “But I don’t think that will necessarily prevent his participation.” At least two people have previously run for president with criminal convictions. In 1920, socialist candidate Eugene Debs ran for president despite having been convicted of the Espionage Act in connection with a 1918 anti-war speech. Conspiracist Lyndon LaRouche also ran for the presidency on multiple occasions despite having been convicted of fraud in 1988. One of his presidential bids, in 1992, took place while he was at a federal prison in Minnesota. Both lost the election.