If special counsel Jack Smith hands down an indictment, we will be keeping an eye on many open issues that might indicate how strong a case the government believes it has. Here is what is on our checklist of things to note:
1
Retention vs. dissemination
Look to see whether the charges include not just illegal “retention” of national defense information, but also a separate allegation of “dissemination.” Both charges are violations of the
Espionage Act and are central to U.S. national security law and protecting the country’s most sensitive secrets. But a dissemination case is particularly egregious, as an illegal retention case deals only with the
risk of improper dissemination, not the actuality. To date, what is in the public record does not indicate that charges for dissemination are warranted, but an indictment may be revelatory.
2
Obstruction only
Examine whether Smith decides to jettison all Espionage Act-related offenses and charge only
obstruction offenses. Such a slimmed-down approach could be aimed at differentiating the Trump prosecution from the apparent facts
in the Biden and
now-closed Pence investigations. All three involve improper possession of government documents, but only Trump’s case raises the issue of obstruction of justice.
Wild card: If the Justice Department alleges that Trump or his aides were
involved in tampering with Mar-a-Lago video surveillance footage, that is as acute a form of obstruction of justice as the allegedly false June certification that represented that a diligent search for responsive documents had been performed and all such documents returned.
3
A “speaking indictment”
4
Strength of the evidence
5
Content of classified information
6
Motive
7
Conspiracy
8
Venue
Look for where the DOJ files charges — the District of Columbia, Florida or New Jersey. What’s at stake in this decision is the jury pool, with Florida being the most favorable turf for Trump. The Justice Department, by contrast, is likely to want to bring the case in the District.
9
Classified documents charges
10
Bedminster
11
The judge
A key question is how fast the case will move toward a trial and verdict. That will turn a lot on the particular judge assigned to the case. Many judges will want to permit the electorate to know the outcome of this criminal case before casting a vote. And, of course, to afford the defendant his day in court in advance of the election.
The case against Trump involves alleged violations of national security laws that are core to keeping national secrets and our country safe. To win public acceptance for such charges, the Justice Department should do everything possible to be transparent about its proof — and about why Trump is being treated the same way anyone else would be who had behaved this way.
It’s called the rule of law.
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