Here’s what we know so far and what to expect in the coming days.
What crimes is Trump being charged with?
The indictment is under seal for now. But federal prosecutors, led by special counsel Jack Smith, have examined a variety of potential crimes – some related to Trump’s handling of the classified documents and others related to anything Trump may have done to obstruct the government’s attempts to retrieve them.
If prosecutors zero in on Trump’s handling of the documents, he could be charged under the Espionage Act with willful retention of national defense information, which carries a 10-year maximum penalty, or with removal and retention of classified information, which used to be a misdemeanor but Congress upgraded to a five-year felony after the investigation into the presence of classified information on Hillary Clinton’s private email server. Prosecutors are also known to have looked at the charge of theft of government documents, which is punishable by up to 10 years in prison if the documents are worth more than $1,000.
Prosecutors could bring multiple counts, treating each classified document retained as a separate crime. Back in 2017, the feds filed a 20-count, willful-retention indictment against a National Security Agency contractor who had a trove of classified information at his Maryland home.
To pursue the process-related part of the case, prosecutors could bring charges like obstruction of justice, which carries a 20-year maximum prison term, making false statements in a federal investigation or perjury, both of which carry maximum five-year terms. They could accuse Trump of aiding and abetting or causing such crimes, even if he didn’t make the allegedly false or perjurious statements himself.
Where is Trump being charged?
Trump said on social media that he has been ordered to report to the federal courthouse in Miami next Tuesday. Miami is part of the federal district that includes Palm Beach, where Mar-a-Lago is located.
It’s possible that Trump could face further charges in Washington D.C., where Smith’s investigation has been based and where a grand jury heard from numerous witnesses and gathered evidence in the probe.
In recent weeks, Smith’s team began calling some witnesses before a second grand jury in Miami, prompting some legal experts to suggest that prosecutors might be weighing the possibility of two indictments: one covering acts connected to D.C. and another based on acts in and around Mar-a-Lago.
In deciding where to file a case, prosecutors aren’t supposed to take into account the political views of the jury pool. But Trump may stand a better chance of finding sympathetic jurors in Palm Beach County. In the 2020 election, Trump lost there, but got 43% of the vote. In Washington, D.C., Trump got less than 6% of the vote.
Who at the Justice Department approved the Trump indictment?
Attorney General Merrick Garland appointed Smith last November to oversee the classified-documents investigation as well as a separate probe into Trump’s attempts to derail the transfer of power after the 2020 election. DOJ’s special counsel regulations declare that Smith should “not be subject to the day-to-day supervision of any official of the Department.”
However, under the rules, Smith had to advise Garland in advance about any major action, and the attorney general can veto any action he deems “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” Garland is supposed to give Smith’s views “great weight” and must notify Congress if he turns the special counsel down.
Will Trump be arrested?
When he was indicted in New York in the hush money case, Trump made an extraordinary trip to a Manhattan courthouse to turn himself into authorities for booking as a criminal defendant. (He pleaded not guilty and was released a few hours later.) He may now need to go through a similar process in the federal system.
The former president, with his Secret Service detail in tow, could report to an FBI office in south Florida or in Washington to be photographed and fingerprinted. Under federal law, collection of a DNA sample is also mandatory in felony cases. A court hearing known as an “initial appearance” would usually be held before a federal magistrate judge, who would formally inform Trump of the charges and advise him of his rights. A second hearing before a district court judge typically follows to set a schedule for further action in the case. The courts could consolidate these hearings in order to limit disruption to other cases, but they would need to take place in each district where Trump is charged.
How long will it take for Trump to go on trial?
A state judge in New York set Trump’s trial in his Manhattan criminal case for March 25, 2024 – nearly a year from the date on which he was charged. A federal case might operate on a similar timeline. The lengthy pretrial process allows time for Trump’s lawyers and prosecutors to exchange evidence, file motions and even discuss the unlikely prospect of a plea deal.
It’s always hard to predict how long pretrial matters will take, even in run-of-the-mill criminal trials. Dozens of cases stemming from the Jan. 6 attack on Congress have reached the trial stage in recent months, some of them more than a year after charges were filed.
Trump, historically, has sought to drag out litigation, and he’d have many tools in his arsenal to do so here — from seeking to change venue to fighting to dismiss the case altogether.
How will the judge be selected?
Federal district courts all have slightly different procedures for judge assignments, but they all ostensibly feature a degree of randomness to prevent judge shopping.
At the U.S. District Court for the District of Columbia, cases are assigned by chance to one of about 20 full-time judges, as well as a handful of judges who are on “senior status” and handle a lighter case load. The court’s bench primarily consists of Democratic appointees, but four of the judges were picked by Trump himself: Trevor McFadden, Tim Kelly, Carl Nichols and Dabney Friedrich. None of the four have been particularly deferential to Trump in cases that have come before them in recent years, though it would create a notable dynamic if any criminal case landed before one of his own appointees.
In Florida, the situation is more complex because the Southern District of Florida – the venue where Trump says he has been ordered to report to – is split into five geographic divisions, and the division where a case is filed affects the eligible judges. Trump would stand a strong chance of drawing one of his own appointees, but it’d be far from a sure thing.
Could Trump go to prison if convicted?
Yes. Convictions for violating the Espionage Act almost always lead to prison time. Likewise for obstruction of justice. If Trump were convicted only of a false statement charge, he might have a better chance to avoid prison.
Can he continue to run for president even if he’s indicted (again)?
Sure. He’s already been indicted in New York and that hasn’t stopped him from running, although the scheduled March 2024 trial in that case could prove to be a real headache for his campaign. A judge overseeing a Trump case, whether in the state or federal system, probably would allow him to continue to travel as he awaits trial, although how any trial would play out during the campaign season is uncharted territory.
There is no constitutional impediment to running for president from prison – or even being elected while behind bars. Some people have already tried, including Socialist candidate Eugene Debs in 1920, conspiracy theorist Lyndon LaRouche in 1992, and Tiger King star Joe Exotic in the current election cycle.
What’s the role of a grand jury in blessing any charges against Trump?
The Constitution requires that federal felony charges be approved by a grand jury, which in the federal system consists of between 16 and 23 people. At least 16 must be present to hear evidence and vote on an indictment. At least 12 people must vote in favor of an indictment in order for felony charges to go forward. Prosecutors usually have significant sway in the process, and federal grand juries rarely turn down requests to approve charges.
Typically, the formal “handing up” of the indictment takes place in front of a magistrate judge and involves only a prosecutor and the foreperson of the grand jury. It’s required to take place in public, but the defendant or defendants aren’t present and often their names aren’t even announced in court.
Will any hearings or trial for Trump be televised?
Almost certainly not. Federal court rules don’t allow photography or video broadcasting of criminal cases. It’s possible audio of some hearings might be available via phone, but the legal authority to allow that sort of remote public access is unclear now that the coronavirus public health emergency has ended.