US: What happens next in the Trump documents case? What indictment means for his political campaign

Washington: Former US President Donald Trump has been indicted for illegally retaining classified government records at his Florida estate after leaving the White House in 2021 and obstruction of justice. Here is what to expect as the case proceeds.

Trump, who on Thursday proclaimed his innocence, is scheduled to make his first appearance in Florida federal court on Tuesday.

The indictment is under seal and it is unclear if it will made public before then.

Soon after Trump appears in court, prosecutors will begin handing over evidence to Trump’s lawyers. That could include years of correspondence between Trump’s lawyers, the US National Archives and Records Administration and federal prosecutors as they haggled over the documents.

At some point, Trump’s lawyers are expected to file a motion to dismiss the case for a variety of reasons, including his claim that he declassified the documents before taking them.

They are also likely to argue that the case should be tossed for what they allege was misconduct by prosecutors, including alleged violations of a legal doctrine that permits people to keep communications with their lawyers private.

Motions to dismiss in criminal cases are standard but rarely succeed because defendants face a high burden convincing a judge that their case is too flawed to even go before a jury.

Prosecutors are also entitled to the benefit of the doubt on their factual allegations at that stage.

WHAT IMPACT WILL THE CASE HAVE ON TRUMP’S CAMPAIGN?

The charges include violations of the Espionage Act, obstruction of justice, making false statements to investigators and conspiracy, according ABC.

None of those would automatically prevent Trump from campaigning or taking office if he is convicted.

It is unclear the impact the case will have on Trump’s standing with voters. Trump’s numbers rose after he was indicted in a separate case in New York in April, and he is the front-runner for the Republican nomination.

He has used the cases and investigations he faces as fundraising tools, telling supporters that he is under attack and needs their help. Trump’s campaign said in April that donations surged after he was indicted in New York.

WHEN WILL THE CASE GO TO TRIAL?

Any potential trial could be many months away.

Trump, who has denied wrongdoing and calls the case a politically motivated witch hunt” has a right to face trial within 100 days, but that rarely happens in complex cases. The parties will likely agree to extend deadlines as they pore over evidence and argue legal disputes before a judge.

WILL TRUMP TESTIFY?

That would be up to him. Criminal defendants are not required to testify and rarely do because subjecting themselves to cross-examination by prosecutors is risky.

Trump did not testify at a recent civil trial over sex abuse and defamation claims brought against him by writer E. Jean Carroll. A jury found Trump liable in that case in May.

WILL INDICTMENT PREVENT TRUMP FROM CAMPAIGNING OR TAKING OFFICE?

The indictment is under seal, but Trump’s lawyer said he is charged with seven criminal counts including violations of the Espionage Act, obstruction of justice and conspiracy. None of those would bar Trump from office if he is convicted.

A trial would take place many months from now, and Trump can freely campaign during this time.

The US Constitution only requires that presidential candidates be natural-born US citizens who are at least 35 years old and have lived in the country for 14 years.

Trump said on Thursday on his Truth Social platform that he is innocent. He would be free to campaign even if he is convicted and sent to prison, and legal experts say there would be no basis to block his swearing-in as president even if he is incarcerated, though this would pose extraordinary logistical and security questions.

WHAT IMPACT WILL  CASE HAVE ON TRUMP’S CAMPAIGN?

It is unclear what the impact will be on Trump’s standing with voters. Trump’s poll numbers rose after his indictment in March in a separate case in New York, and he is the front-runner for the Republican nomination.

He has used the cases and investigations he faces as fundraising tools, telling supporters that he is under attack and needs their help. Trump’s campaign said in April that donations surged after he was indicted in New York.

WHAT HAPPENS IF TRUMP TAKES OFFICE WHILE THE CASE IS PENDING?

It is unlikely that the prosecution would proceed if Trump won the November 2024 election.

The US Department of Justice is part of the executive branch, and presidents are the top federal law enforcement officers in the country. Federal prosecutors generally serve at their pleasure.

The US Justice Department has a decades-old policy that a sitting president cannot be prosecuted. The department can deviate from policy in extraordinary circumstances with the approval of the U.S. attorney general.

A lame-duck attorney general serving under Democratic President Joe Biden, in this case Merrick Garland, could ignore that policy and forge ahead, but Trump, as president, could fire him and hire an acting replacement of his choice before naming a permanent successor subject to US Senate confirmation.

COULD TRUMP PARDON HIMSELF?

Maybe.

Many scholars have said a self-pardon would be unconstitutional because it violates the basic principle that nobody should be the judge in his or her own case.

Others have argued that a self-pardon is constitutional because the pardon power is very broadly worded in the Constitution, which states that presidents shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Trump could not pardon himself for a conviction in state court.

He is currently under indictment in New York state court for allegedly using falsified records to conceal hush money payments he paid to a porn star, and Georgia prosecutors are investigating his efforts to overturn the results of the 2020 election in that state.

WHAT HAPPENS IN THE CASE IF TRUMP WINS THE ELECTION?

It is unlikely the prosecution will proceed if Trump wins the 2024 presidential election.

The US Department of Justice is part of the executive branch, and presidents are the top federal law enforcement officers in the country. Federal prosecutors generally serve at their pleasure.

The Justice Department has a decades-old policy that a sitting president cannot be prosecuted. The department can deviate from policy in extraordinary circumstances with the approval of the U.S. attorney general, the country’s top law enforcement official.

A lame-duck attorney general serving under President Joe Biden, in this case Merrick Garland, could ignore that policy and forge ahead, but Trump, as president, could fire him and hire an acting replacement of his choice before naming a permanent successor subject to US Senate confirmation.

Here is a look at the charges

WHAT IS TRUMP ACCUSED OF DOING?

Trump is being charged with seven criminal counts, including mishandling classified documents and obstruction of justice, according to his lawyer and a source familiar with the matter.

The indictment is under seal and it is unclear whether it will be made public before Trump makes his first appearance in Florida federal court on Tuesday. He proclaimed his innocence on Thursday.

In January 2022, Trump agreed to return 15 boxes of records to the US National Archives and Records Administration, and officials discovered in them more than 700 pages of records marked as classified.

The Justice Department issued a grand jury subpoena in May 2022 asking Trump to return any other classified records.

Trump’s attorneys later turned over 38 pages marked as classified and attested that all records with classified markings had been returned to the government - a claim that later proved to be false.

In August, the FBI conducted a search of Trump’s Palm Beach home and seized approximately 13,000 more records, about 100 of which were marked as classified. Of those, some were marked as “top secret” - the classification level reserved for the country’s most closely held secrets.

WHAT CHARGES DOES TRUMP FACE?

The most serious charge is being brought under the Espionage Act, which criminalises the unauthorized possession of national defence information. It is punishable by up to 10 years in prison.

The World War One era law predates classification of documents but makes it a crime to willfully retain national defence information that could be useful to foreign adversaries.

Courts have ruled that the information must be “closely held.” Trump is also charged with several counts of obstruction of justice, which criminalises any “intent to impede, obstruct, or influence” an investigation.

To prove those allegations, prosecutors will need to show that Trump’s actions were intentional and that his goal was to hinder the probe, regardless of whether those efforts were successful.

Trump is also charged with making false statements to investigators.

WHAT ARE TRUMP’S POSSIBLE LEGAL DEFENCES?

Trump has claimed that the investigation is a politically motivated “witch hunt.” He will likely argue that he is being selectively prosecuted, citing the fact that President Joe Biden and former Vice President Mike Pence have not been charged after it was discovered that both men retained classified records after leaving office. The Biden documents stem from his time as a vice president and senator.

Trump’s lawyers say the selective prosecution is part of a larger pattern of prosecutorial misconduct, though they have provided few details beyond claiming that investigators violated a legal doctrine that permits people to keep communications with their lawyers private.

The legal hurdles to proving selective prosecution are high.

Legal experts say such claims are usually doomed because defendants must prove that they were intentionally singled out for arbitrary reasons and that prosecutors declined to bring charges against others in similar circumstances.

Unlike Trump, Biden and Pence immediately returned the records and cooperated with efforts to search for additional documents. The Justice Department is investigating the Biden matter and dropped a separate probe of Pence on June 1.

Trump has claimed that he declassified the documents before removing them. Presidents have the ultimate authority to classify and declassify documents, though this is typically put in writing and done through established channels. Trump has yet to provide evidence that he declassified the documents.

Trump and his allies have said he had a standing order to declassify documents he took from the Oval Office to the White House residence, but Trump has failed to provide any evidence of this as well.

On obstruction, Trump could argue he was simply acting on what he thought was sound legal advice from his lawyers and therefore lacked criminal intent. He could also seek to shift blame to subordinates or accuse them of going rogue.