Donald Trump’s indictment, and its impact on the 2024 race for White House

Ex-US President Donald Trump has been charged with mishandling classified documents, marking the first time a ex-president has been charged with federal crimes.

For the first time in American history, the US department of justice (DOJ) has charged a former president with federal crimes.

Former US President Donald Trump (Getty Images via AFP)

Read here: ‘No contact with Justice department over Trump case’: Joe Biden

Donald Trump’s alleged mishandling of classified documents after leaving office not only leaves him in a legally vulnerable position ahead of the 2024 presidential polls, but also adds a new dimension to what promises to be among the most turbulent elections in the history of the US.

Here’s what we know about the background of the case, the legal architecture governing it, Trump’s other legal challenges and how the indictment may affect the battle for the White House next year.

The indictment

The Presidential Records Act of 1978 governs the management of all presidential records. It says that the US “shall reserve and retain complete ownership, possession, and control of Presidential records”. The Act also states, “Upon the conclusion of a President’s term of office, or if a President serves consecutive terms upon the conclusion of the last term, the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.”

Trump left office in January 2021 and shifted to Mar-a-Lago, his private resort-residence in Florida. In the summer of that year, the National Archives and Records Administration (NARA) reached out to Trump’s team asking them to hand over any other documents that may still be in the former president’s possession. In January 2022, Trump’s team finally handed over 15 boxes of documents to NARA, many of which contained classified documents, but the archive agency suspected there remained gaps. In May, the DOJ issued a subpoena asking Trump to hand over any classified documents that were still in his possession. The following month, a lawyer for Trump handed over 38 more classified documents to NARA.

Unconvinced that Trump had indeed handed over all documents, the Federal Bureau of Investigation (FBI) secured a search warrant and, in August 2022, raided Mar-a-Lago, where agents discovered more than 100 additional classified documents. In November, the justice department appointed a special counsel, Jack Smith, to investigate the case. It is based on Smith’s investigation — which has uncovered audio recordings as well as notes from Trump’s lawyers that suggest that, despite his public denial, the former president was aware of the illegality of his actions — that the department has charged Trump with mishandling classified documents on June 8.

Read here: Donald Trump first US ex-President to face federal indictment

What’s next?

The exact charges were publicly revealed on Friday and included 38 criminal counts, and 31 separate counts of violation under the Espionage Act. Trump has been charged, among other things, for false statements, conspiracy and obstruction of justice, among other counts. The indictment says that the documents Trump had included information “regarding defence 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.

“The unauthorised disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods,” it added.

Trump will now submit himself to a Miami court on Tuesday. However, it will be months before a trial commences. Trump’s own defence revolves around the fact that, as president, he had the right to declassify documents and he had done so already.

Trump already faces three other legal challenges. In New York, prosecutors have charged Trump with felony for falsifying business records in a case related to hush payments he made to an adult film actress in the run-up to the 2016 elections. The trial for the case will begin next year. Later this summer, a grand jury in Georgia is expected to charge Trump over his efforts to illegally overturn the state’s electoral results in the 2020 polls by putting pressure on the state’s authorities. And the DOJ, under Smith, is also investigating the former president’s role in his attempts to overturn the 2020 presidential election results which led to the January 6, 2021 mob attack on the US Capitol.

Biden’s files

One of the allegations that Trump has made is the “weaponisation” of the justice system and the FBI, and to back his point, he has accused federal authorities of turning a blind eye to President Joe Biden’s mishandling of classified files from his time as vice-president.

At the end of 2022, Biden’s lawyers discovered a set of classified files in his old office at the Penn Biden Centre, where he worked after demitting office as vice-president, and immediately handed it over to NARA. In following months, both Biden’s lawyers and justice department found other documents in Biden’s residence in Delaware. The FBI also conducted a search of Biden’s residence. And the DOJ appointed a special counsel to investigate the case.

Biden’s entire defence, however, has rested on the fact that he has made no effort to hide the documents: the documents were immediately handed over to NARA once they were discovered; his team has fully cooperated with the justice department; there has been no obstruction of the investigation and in all these respects, his case is unlike that of Trump, who, they allege, made a deliberate decision to take away files, refused to hand them over despite repeated pleas, and obstructed justice.

Eye on 2024 polls

After the Republicans faced a setback in the 2022 midterm elections, there was a brief period when it appeared that Trump’s electoral prospects for the party’s nomination were bleak. His favoured candidates had lost House and Senate elections, his extremism during the 2020 elections was seen as having put off supporters, and the Republican donor and media ecosystem appeared to be moving towards Florida governor Ron DeSantis. But Trump confounded pundits yet again, as he raced up the Republican ladder to become the frontrunner for the nomination. Criminal charges against Trump, paradoxically, have helped increase his support among core Republican supporters who see the cases as vendetta by the Democratic administration.

Read here: Ex-US President Donald Trump indicted on 37 counts in secret documents case

Against this backdrop, even as Trump’s legal troubles mount, Thursday’s charges appear to be unifying the Republican base behind him. Even Trump’s foremost rivals for the nomination, including DeSantis, have criticised the administration for, what they term, the “weaponisation” of the justice system and come to Trump’s defence. Trump’s team is also looking to exploit the moment by playing the victim card and raise more funds for his presidential campaign. An indictment, and even a conviction, does not bar Trump from contesting in the elections.

At the same time, Democrats believe that even if Trump’s core base remains loyal, the legal charges will alienate moderate Republicans and independent voters away from Trump, raising Biden’s prospects in 2024. What is certain is that irrespective of how the legal charges eventually play out, next year’s presidential polls will be the most unique in American electoral history, where an incumbent president may battle a former president charged with federal crimes.