Trump’s Next Indictment: Just a Question of ‘What’ and ‘When’

Donald Trump appears to be bracing for another indictment, and the question is how quickly the hammer may fall. This time the charges will not come from a state prosecutor like New York’s Alvin Bragg or Georgia’s Fani Willis. It will come from the feds. 

Trump, the Republican front runner for the 2024 nomination, is the first presidential candidate in our history to be twice impeached and once indicted — not to mention appealing a civil jury verdict that he sexually abused and then defamed another human being. That’s quite a rap sheet for a presidential candidate, particularly when there may be more to come.

The federal indictment of Trump over the Mar-a-Lago documents now seems imminent. I am not just reading the entrails of an owl or engaging in wishful thinking to make that judgment. The augury doesn’t come from the Justice Department, either; so far, it is leakproof-sealed when it comes to telling us where the investigation stands. Attorney General Merrick Garland has said that “we speak through our filings” and, until then, mum’s the word. And none of Trump’s lawyers has said they have been informed that charges will come soon. 

Yet, the reports coming from the media provide clues as convincing as a child with forbidden jam on her face. 

Trump’s lawyers showed weakness by sending Garland a letter (later posted to his Truth Social account) asking for a meeting. In a run-of-the-mill white-collar criminal case, the faena, the moment of truth before a matador kills a bull, is a meeting of defense counsel with the prosecutors. Prosecutors typically hold such meetings to afford the defense a fair hearing, to be sure they have the facts straight, and possibly to negotiate a plea. That’s what lawyers do; they like to sit around and discuss. 

As much as prosecutors will claim they are treating Trump like everyone else, this is not a run-of-the mill case. We have a special counsel, a former president running for reelection, and alleged mishandling of classified documents — a combination of features that has no precedent. Thus, Trump’s lawyers want to discuss what they characterize as the “unfair” treatment Trump has received at Smith’s hands. 

The letter states in part: “Unlike President Biden, his son Hunter, and the Biden family, President Trump is being treated unfairly. No President of the United States has ever, in the history of our country, been baselessly investigated in such an outrageous and unlawful fashion. We request a meeting at your earliest convenience to discuss the ongoing injustice that is being perpetrated by your Special Counsel and his prosecutors.”

Former federal prosecutor Harry Litman sagely said in a tweet: “As ever, Team Trump foolishly mixes law and politics. If you have one point to make to get a meeting with the AG, comparing Trump to ‘Hunter and the Biden family’ is not the way to go. The letter was written for public consumption.” Litman described it as “the ultimate Hail-Mary.”

Whether or not Garland accepts the request for a meeting, the letter smacks of desperation and a foreboding sense that an indictment is on the horizon — indeed, a “Hail Mary” pass to go over special counsel Jack Smith’s head. Make no mistake about it: Smith is calling the shots. Garland has been emphatic that he will accept Smith’s judgments so long as they are not off the wall.

While the information reported in the media smells like an impending indictment, it’s not definitive. The known facts surrounding the Mar-a-Lago investigation are damning, and it fights all logic to surmise that charges haven’t already been drafted by Smith’s phalanx of energetic lawyers. But what charges and when are only the subject of rank speculation. As Hamlet mused: “If it be now, 'tis not to come; if it be not to come, it will be now; if it be not now, yet it will come. The readiness is all.”

Before his infamous CNN town hall program, Trump might have run the “Can I help it if I employ such stupid people?” defense — that the documents were accidentally removed from the White House and transferred to Mar-a-Lago without his knowledge or consent, and he didn’t learn about it until later. But in the town hall meeting, he arrogantly stated: “I took the documents. I’m allowed to … (they) become automatically declassified when I took them.” 

Nonsense. Smith received documents from the National Archives showing that Trump and his closest advisers had knowledge of the correct declassification process while he was president. There is no such thing under the sun as automatic declassification. 

The National Archives, which has been a big player in the documents case, appears to have 16 items that prove Trump was aware he had an obligation to return government documents to the Archives, classified or unclassified. No wonder Trump smeared the Archives in his Q&A with CNN’s Kaitlin Collins, calling it an “Extremely — extremely left group of people.”

Most shocking was the smarmy answer Trump gave Collins just before he called her a “nasty person.” Asked if he ever showed classified documents to anyone, he answered, “Not really,” and when pressed on what that meant, he added: “Not that I can think of.” 

Trump’s former lawyer, Evan Corcoran, reportedly gave Smith 50 pages of handwritten notes as part of the classified documents investigation. The notes reportedly showed that Trump was put on notice that he could not retain classified documents after they had been subpoenaed. And prosecutors, it appears, have scrutinized statements by Trump’s valet, Walt Nauta, that Trump told him to move boxes out of the storage room before and after the subpoena. The activity was evidently memorialized on surveillance tapes. The latest news evidencing Trump’s apparent involvement and intent comes from a Washington Post report that Mar-a-Lago moved boxes a day before the FBI and a Justice Department prosecutor came for documents.

The key mystery in this case is why Trump took the classified documents in the first place. To further fuel the speculation, Smith reportedly has issued a subpoena probing Trump’s business interests in foreign countries. Even if true, it may not mean much. A recent report suggests the special counsel sent subpoenas to foreign countries to obtain information about Trump’s business dealings with China, France, Turkey, and the Emirates dating back to 2017. Did the returns on the subpoenas yield anything of value to prosecutors? Only Smith’s hairdresser knows for sure.

But the sure bet is that Smith is wrapping up and may be the next prosecutor to indict Trump.

Bragg’s indictment only emboldened the others. No “death and destruction” followed. No civil unrest. No wailing that we look like a banana republic. Only analysis that he filed a solid case. 

The moment of truth for Trump may not be far off. The New York judge in the Bragg prosecution has given the parties a firm trial date of March 25, 2024.

James Zirin, an author and commentator on politics and the law, is a former federal prosecutor in New York's Southern District. His most recent book is “Plaintiff in Chief: A Portrait of Donald Trump in 3,500 Lawsuits” (2019).