Some of the legal analysts and allies who have defended former President Donald Trump through multiple brushes with law enforcement are warning that the federal charges against him in the classified documents case pose a serious threat.
Trump’s indictment last week on 37 counts of criminal activity drew cries of unfair treatment from many of the former president’s supporters, nearly all of whom argued that Trump had been targeted for conduct that the Justice Department ignored in other cases.
DONALD TRUMP INDICTMENT: WHAT ABOUT JOE BIDEN’S CLASSIFIED DOCUMENTS?
But the most recent case puts Trump in far graver legal peril, some commentators have said, than previous investigations of ties to Russia or hush money payments to a former porn star.
“I was shocked by the sensitivity of these documents and how many there were, frankly,” former Attorney General William Barr said Sunday of what he gleaned from the indictment. “If even half of it is true, then he’s toast. I mean, it’s a pretty — it’s a very detailed indictment. And it’s very, very damning.”
Barr had publicly warned for months about the seriousness of the allegations that his former boss mishandled classified documents. But in prior situations where Trump faced legal scrutiny, he has defended Trump, siding with critics who accused law enforcement agencies of pursuing politicized investigations.
Such was the case with the years-long FBI investigation of the 2016 Trump campaign’s ties to Russia. Barr said last month, after the release of special counsel John Durham’s investigation into how that investigation started, that what Trump faced was “one of the greatest injustices” done to a president.
He also said Manhattan District Attorney Alvin Bragg’s indictment of Trump in April on charges related to payments he sent to Stormy Daniels, a woman who claimed to have had an affair with Trump, was “an abuse of prosecutorial power.”
But Barr said the federal case against Trump in the classified document matter appears, based on the 49-page indictment the Justice Department released on Friday, to include strong evidence that Trump violated the law.
Nikki Haley, Trump’s former ambassador to the United Nations and a 2024 rival, had said last week after the Justice Department told Trump he’d be indicted that the former president was the victim of “prosecutorial overreach.”
However, days after the release of the detailed indictment, she seemingly changed her stance.
“If this indictment is true, if what it says is actually the case, President Trump was incredibly reckless with our national security,” Haley said Monday on Fox News.
While she acknowledged the possibility that the investigation of the classified documents matter was politically motivated, she said the evidence that investigation yielded appears significant.
Trump’s former national security adviser John Bolton had dismissed the Bragg indictment as partisan when the Manhattan prosecutor unveiled those charges against Trump.
“Speaking as someone who very strongly does not want Donald Trump to get the Republican presidential nomination, I’m extraordinarily distressed by this document,” Bolton, long a Trump critic, said of the indictment at the time. “I think it is even weaker than I feared it would be.”
Bolton did not see the allegations, including that Trump held on to highly sensitive documents and showed them to visitors, through the same lens.
“If he has anything like what the complaint, what the indictment alleges, and of course the government will have to prove it, then he has committed very serious crimes,” Bolton said on CNN on Monday.
Jonathan Turley, a law professor at George Washington University who has been highly critical of the Justice Department’s treatment of Trump in the past, said the former president could spend the rest of his life in prison if the Biden administration is able to prove what it alleges in the indictment.
“The fact is, both things may be true. Yes, the Department of Justice may have been out to get him, but he made it easy,” Turley said on Fox News on Monday. “I mean, if you look at what is being described in this indictment, confronted with someone that he felt was trying to get him, he couldn’t have made it more easy for them to do so.”
Turley said the evidence against Trump appears, at the moment, “quite strong.”
Alan Dershowitz, an attorney who defended Trump during his second impeachment trial in 2021, said the existence of audio recordings that prosecutors say show Trump bragging about his possession of documents he knew to be classified will make the former president’s defense difficult.
“Well this is a much stronger indictment than many people anticipated. And this is clearly the strongest indictment that Donald Trump ever faced,” Dershowitz said Friday on NewsNation.
Dershowitz wrote Sunday in an op-ed for the Wall Street Journal that one of the audio recordings cited by prosecutors is “powerful” and “the kind of evidence every defense lawyer dreads and every prosecutor dreams about.”
While Dershowitz, generally a Trump ally, said special counsel Jack Smith, who led the classified documents investigation, likely did oversee an investigation that was more aggressive than necessary, Trump put himself in a vulnerable position.
“Mr. Smith had a lot of help from Mr. Trump. Had the former president cooperated with investigators and immediately returned all the classified material in his possession, as Messrs. [President Joe] Biden and [former Vice President Mike] Pence did, charges would have been unlikely,” Dershowitz wrote. “But Mr. Trump did what he always does. He attacked Mr. Smith and resisted his efforts. That provoked investigators to double down, which in turn led Mr. Trump to engage in the allegedly obstructive conduct that forms the basis for several counts in the indictment.”
Trump’s defenders have pointed to Biden and Pence, both of whom had anywhere from a few to several hundred classified documents in their private homes, as examples of how the Justice Department handles similar cases.
They have also cited the case of Hillary Clinton, who housed a large volume of classified information on a private server in her home during her tenure as secretary of state.
Indeed, while the Justice Department investigated all three, none faced the level of aggression — including efforts to obtain secret recordings using witnesses, unannounced raids, and affidavits for their attorneys — that Trump did.
Andrew McCarthy, a former U.S. attorney, said the double standard argument deployed by Trump’s allies may prove politically effective, but it likely won’t succeed in a courtroom.
That’s because jurors are instructed to focus only on the facts of the cases before them, not to consider outside factors.
“The problem here is not that somebody who committed crimes is being prosecuted,” McCarthy said during an appearance on Fox Business. “The problem is that all these people who also committed crimes didn’t get prosecuted.”
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McCarthy said Clinton and others — like former CIA Director David Petraeus, accused of showing classified material to an author with whom he was having an affair — should have faced the same type of scrutiny that Trump is facing.
McCarthy has defended Trump against the opening of the Russia investigation, arguing weeks ago that the Durham report “humiliated” the FBI.
