PolitFact FL: Which charges against Trump are most serious? Can he still run in 2024?
The investigation took months, but it’s official: Former President Donald Trump has been indicted in a case centered on federal documents he took to Mar-a-Lago, his Palm Beach, Florida, resort.
The indictment, formally released June 9, includes 37 counts against Trump, some of which are shared with his personal aide at Mar-a-Lago, Walt Nauta.
- Of those, 31 counts, solely against Trump, involve the "willful retention of national defense information," relating to his unauthorized possession and storage of federal documents, some of which were classified;
- One count against Trump and Nauta involves a conspiracy to obstruct justice by hiding and concealing documents;
- One count against Trump and Nauta involves withholding a document from a grand jury;
- One count against Trump and Nauta involves corruptly concealing a document or record from a grand jury;
- One count against Trump and Nauta of concealing a document in a federal investigation;
- One count against Trump and Nauta involves a scheme to conceal classified documents from the grand jury and the FBI.
Finally, one count each on making false statements and representations was charged to Trump and Nauta separately.
This is the second time Trump has been indicted in recent months. The first involved charges brought by a Manhattan grand jury stemming from a $130,000 hush money payment in 2016 to adult film actor Stormy Daniels. On April 4, Trump appeared in a New York courtroom and pleaded not guilty to 34 felony criminal charges of falsifying business records. The case is scheduled for trial in March 2024.
The documents case marks the first time a former president has faced federal charges.
Here are a few questions and answers about key aspects of the indictment in the documents case.
What is an indictment?
An indictment is one way to bring charges against someone suspected of a crime.
Charges can be brought forward in criminal cases through an indictment by a grand jury, by a prosecutor’s direct filing, or following a probable cause arrest by a law enforcement officer.
In the documents case, prosecutors decided to seek an indictment by a grand jury. Grand juries consist of local citizens and are convened the same way as trial juries, except they must agree to be available for weeks or months, depending on the jurisdiction.
Grand juries meet in secret to let witnesses testify freely and avoid interference for jurors. The grand jury is part of the prosecutor’s investigative process; it lets prosecutors test evidence and get a reaction.
If the grand jury votes for an indictment, it does not mean a defendant is guilty; it means they agree that formal charges should be filed. Those charges are then weighed at trial, unless the defendant reaches a plea agreement with prosecutors first.
Has a president ever been indicted before Trump?
Before Trump, no American president was indicted on criminal charges either while in office or afterward.
American presidents have been investigated by special counsels for conduct while in office, including Richard Nixon, Bill Clinton and Trump. But a pair of federal legal opinions are widely interpreted as protecting sitting presidents from prosecution.
Why was the indictment done in Florida?
Many of the actions at issue occurred at Mar-a-Lago, "so the appropriate venue for those charges would be South Florida," said Joan Meyer, a partner at the law firm Thompson Hine LLP who previously worked for the Justice Department in Washington, D.C., the U.S. Attorney’s Office in the Western District of Michigan, and as a criminal prosecutor the state attorney’s office in Cook County, Illinois.
The prosecution could have argued that the case should be tried elsewhere, such as Washington, D.C. But experts said doing so would have increased the risk of having that decision denied by a judge, and would have prolonged the process, given likely opposition from Trump’s lawyers.
"Prosecutors prefer to keep counts together rather than separate indictments, especially in a politically charged case like this one," Meyer said.
Having the case play out in Florida is probably more favorable to Trump than having it in Washington, D.C., or New York, two jurisdictions in which the jury pools are heavily Democratic. Trump won Florida in both of his presidential campaigns, and it has been his longtime unofficial (and most recently, official) home.
In Florida, Trump could receive a jury pool that is "more receptive to his claims that this is witch hunt," Meyer said.
What is the next step?
Trump has been ordered to appear at 3 p.m. Eastern time June 13 at the U.S. District Court in Miami. This is known as an arraignment.
An arraignment is typically a short hearing, sometimes lasting only minutes, in which charges are formally presented. Trump would be expected to enter a not guilty plea and request a jury trial.
As was the case for his arraignment on the previous charges in New York, Trump will almost certainly not be handcuffed. "He is not a flight risk," said Kendall Coffey, a former federal prosecutor in South Florida. "He is a former president who still has a component of popularity. Why antagonize what could be a significant number of Americans with a perp walk?"
What charges are potentially the most worrisome for Trump?
Legal experts zeroed in on the Espionage Act, which dates to 1917 and forms the basis of the 31 counts in the indictment.
The portion at issue in the Trump indictment involves a defendant who "willfully communicates, delivers, transmits" information relating to the national defense "to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it."
The act "makes it a crime to willfully retain national defense information," said Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan who is now a University of Michigan law professor. "This is significant because it does not matter whether the documents are classified, only that they pertain to the national defense."
This distinction would "render moot" Trump’s claims that he declassified the documents, she said. (Experts have told PolitiFact that "in-brain" declassification is unsupported by legal precedent.)
Meyer agreed that charges related to the Espionage Act would be the "most important." They would open the door for prosecutors to probe why Trump was retaining those documents and what overseas business interests he had "that may dovetail with the retention" of those documents, Meyer said.
Does the special counsel and his team see this prosecution to the end?
Experts said the special counsel team will probably continue helming the case, but perhaps with additional personnel from the Justice Department.
"The special counsel and his team seem to have very carefully and meticulously prepared this case," Meyer said. As a result, the department "will want these prosecutors to continue through trial to ensure that the case is handled properly. But it is customary for local assistant U.S. attorneys to participate in cases in their district, and it is wise to solicit their participation. They are most familiar with local judges and juries, so tactically, using them is the best bet."
How do criminal charges against Trump affect whether he can run for president?
Trump can keep running for president, just as he has been.
"There is no bar to running for president while under indictment and nothing that would prevent his serving as president," said Stanley Brand, a longtime election law expert who is now a distinguished fellow in law and government at Penn State Dickinson Law.
The U.S. Constitution upholds the principle that voters decide who shall represent them, and its qualifications are limited to natural-born citizenship, age (35 by Inauguration Day) and U.S. residency (14 years).
Convicted felons have run for president in the past. Lyndon LaRouche was convicted in 1988 of tax and mail fraud conspiracy and ran for president multiple times between 1976 and 2004.
Eugene Debs was convicted of violating the Espionage Act of 1917 for an anti-war speech, then ran for president under the Socialist Party banner from a federal prison in Alabama in 1920. Debs’ supporters handed out campaign buttons for "Prisoner 9653." The candidate who won the presidency that year, Warren Harding, eventually commuted Debs’ 10-year sentence, said James Robenalt, a lawyer who has written about the relationship between Debs and Harding.
State constitutions and laws include provisions that say people convicted of felonies can’t run for office, but these provisions apply only to state or local candidates.
Could having charges pending against Trump pose logistical challenges to his campaign?
An incarcerated candidate would not be able to appear in person on the campaign trail. But experts say the chance of Trump being incarcerated before trial, even temporarily, is effectively zero. He is likely to be released on his own recognizance without bail.
"It is possible they will seize his passport, but that seems unlikely, and even if they did, that wouldn't really affect his presidential campaign in any significant way," Ric Simmons, an Ohio State University law professor, told PolitiFact earlier this year.
If he’s convicted but wins the presidency, could Trump pardon himself?
No one knows for sure.
"There is no consensus among scholars on whether a president may pardon himself," Michael Gerhardt, a law professor at the University of North Carolina, told PolitiFact in 2020.
Perhaps the strongest argument that a self-pardon would be allowed is that the Constitution doesn’t explicitly prohibit it. However, there are several circumstantial arguments that, collectively, make a strong case that a self-pardon isn’t allowed, legal experts said.
The Constitution’s pardon clause uses the verb "grant," which ordinarily means giving to someone else, Harold H. Bruff, an emeritus University of Colorado law professor, told PolitiFact in 2020. Going back to its English monarchical origins, a pardon has long been conceived as an act of mercy. Neither of these suggest something that can be done to oneself.
Also, Bruff said that when the Constitution was being written, "a background value everywhere in the air was that no one should be a judge in their own cause." This notion, sometimes referred to in Latin as "nemo judex in causa sua," is a longstanding common law principle, he said.
"People cannot prosecute, judge, or sit on juries in their own cases. Like a judge who would have to submit to the authority of another judge if he were being prosecuted, a president must seek a pardon from his successor," wrote Brian Kalt, a Michigan State University law professor who has studied pardons.
That is what happened with President Richard Nixon. It was his successor, Gerald Ford, who ultimately gave Nixon a wide-ranging pardon for Watergate-related crimes.
"You never know until you have the temerity to try," said Daniel Kobil, a Capital University law professor. "Even Richard Nixon didn’t have the temerity to try it."
PolitiFact Staff writer Amy Sherman contributed to this report.
- Indictment of Donald Trump on documents case, June 9, 2023
- PolitiFact, "Ask PolitiFact: Can Donald Trump pardon himself?" Nov. 24, 2020
- PolitiFact, "Q&A: Can Trump run for president if indicted in Stormy Daniels case? What happens if he's arrested?" March 20, 2023
- PolitiFact, "What is an indictment and what does it mean for Donald Trump?" March 31, 2023
- PolitiFact, "Obstruction of justice, presidential immunity, impeachment: What you need to know," May 17, 2017
- PolitiFact, "Fact-checking Donald Trump’s CNN town hall claims on Jan. 6, abortion, Mar-a-Lago documents," May 10, 2023
- Email interview with Stanley Brand, distinguished fellow in law and government at Penn State Dickinson Law, June 9, 2023
- Email interview with Barbara McQuade, former U.S. attorney for the Eastern District of Michigan and law professor at the University of Michigan, June 9, 2023
- Email interview with Joan Meyer, former prosecutor and partner at the law firm Thompson Hine LLP, June 9, 2023
- Email interview with James Robenalt, a lawyer specializing in political prosecutions and partner at the law firm Thompson Hine LLP, June 9, 2023
- Interview with Kendall Coffey, former federal prosecutor in South Florida and lawyer at Coffey Burlington, June 9, 2023
- Other sources linked in article