All he had to do was give them back

If shock from the June 9 indictment of former president Donald J. Trump for allegedly committing 37 felonies while illegally retaining classified materials related to U.S. national security is starting to fade, then a more nuanced and detailed examination of the charges and available evidence is in order. The sheer scale of the alleged crimes is matched only by the equally extraordinary amount of evidence and the ineptitude of Trump and his staffers in apparently perpetrating a crime and then a cover-up with no precedent in American presidential history.

For context, remember that no other president has ever been accused of similar behavior. And while presidents can de-classify materials while in office, they must follow a process to do so. They cannot simply wave a magic wand and declassify whatever they wish. Instead, they are required to follow the law, like the rest of us. Once their term in office is over their access to classified materials and their power to declassify them ends. Period.

The crux of the charges against Trump are that he kept documents in his possession after he left the White House that he was not legally allowed to have. Federal authorities requested their return on multiple occasions, but Trump refused. Eventually, agents raided Trump’s Mar-a-Lago estate in Florida and found an enormous trove of classified material, most of which was stored in unsecured locations. That is why 31 of the 37 charges are related to the “willful retention of national defense information.”

And what was included among those documents? According to the indictment, “The classified documents TRUMP stored in his boxes included information regarding defense 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 unauthorized 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.” In other words, the documents were among the most highly classified in the Department of Defense, and their disclosure to current or potential enemies of the United States posed a grave danger to national security.

Given the stakes, one would presume the documents were kept in a safe place, right? Hardly. Photographs included in the indictment showed boxes of material in a storage room accessible through multiple unlocked doors, including one to a pool utilized by guests. Others were found on the stage of a ballroom, in a bathroom, in a shower, in an office, and in a bedroom. None of them were in a safe or guarded in any way. And it is worth noting that Mar-a-Lago is a functioning resort. Between January 2021 and August 2022, for example, the facility’s club hosted 150 social events attended by thousands of guests, any number of whom might have been intelligence agents working for a foreign power. And we know that foreign spies had Mar-a-Lago on their radar because in 2019 a Chinese national was arrested on site in possession of malicious software, a signal detector, $7,500 in hundred-dollar bills, and nine USB drives. How many others like her got away undetected?

Trump’s defenders have tried to make the case that other elected officials have taken classified material with them after they left office, and up to a point that is true. Mike Pence, Hillary Clinton, and President Joe Biden also mishandled some classified materials. But they had far fewer documents in their possession, took them home by accident, and returned them when they were asked or when the documents were discovered. In other words, in those cases there was no intent to deceive or to illegally retain the material. Trump, on the other hand, knew what he had, knew he was not supposed to have it, and tried to hide it from federal investigators.

How do we know? Because federal agents have copies of text messages between Trump aides about finding and moving classified material; because one of Trump’s attorneys took notes of a conversation in which Trump indicated he knew he wasn’t supposed to have certain materials and he wanted to keep them and mislead federal officials anyway; and because Trump admitted in a recorded conversation with staffers, a writer, and the writer’s publisher that he had a copy in his hands of a U.S. war plan against another country (probably Iran), that it was classified, and that he no longer had the power to declassify the document. No one in the room had security clearance.

What should come next is an easy conviction. If you or I had those documents, our fellow citizens would be clamoring for our incarceration, and they would be right to do so. For precedent, consider the cases of Robert Birchum, Jeremy Brown, and Nghia Hoang Phong. All of them have recently been convicted by the United States of taking classified reports home and are facing significant time in prison. There are dozens of other examples.

None of those other cases involves a former president, of course, and so what will happen in the future is hard to know. The judge handling the case, Aileen Cannon, is a relatively inexperienced Trump appointee who proved so biased or legally mistaken when handing down an earlier documents case decision that an appellate court demolished her rulings. She could bungle this case too. And juries are notoriously fickle, particularly when politics are involved. If only one juror thinks presidents should be able to do whatever they want, then a conviction may prove elusive.

But there should be no mistake regarding the enormity of the alleged crimes or their staggering implications for national security. As former Attorney General William Barr put it: “I was shocked by the degree of sensitivity of these documents and how many there were. … If even half of it is true, then he’s toast.”

We will see.

Lance Janda holds a PhD in History from the University of Oklahoma and has more than 30 years of experience in higher education. He is the author of “Stronger Than Custom: West Point and the Admission of Women”, among other works.