Varghese Summersett

Former U.S. President Donald Trump has been federally indicted over his handling of classified documents after he left the White House, marking the first time in history that an ex-president faces federal criminal charges.

[If you are looking for information on the Trump target letter, check out our most recent article.]

The indictment comes two months after Trump was indicted on state charges by a New York grand jury for allegedly falsifying business records in connection with hush money paid to an adult film actress.

The federal charges will differ in many respects from the New York charges and carries carry more severe legal consequences.  The former president has denied wrongdoing in both cases and maintains that he is the victim of political persecution.

In this article, Board Certified Criminal Attorney Benson Varghese explains the Trump federal indictment and answers questions about this unprecedented development in the nation’s political and legal history.

Classified Document Charges

What federal crimes is Trump being charged with?

The 44-page indictment was filed in U.S. District Court for the Southern District of Florida. It lists 37 counts against Trump and also names Waltine Nauta, a Trump aide who worked as a White House valet and later served as his “body man,” as a co-conspirator. The charges include:

  • 31 counts of willful retention of classified documents, a violation of the Espionage Act;
  • 1 count of conspiracy to obstruct justice;
  • 1 count of withholding a document or record;
  • 1 count of corruptly concealing a document or record;
  • 1 count of concealing a document in a federal investigation;
  • 1 count of a scheme to conceal; and
  • 1 count of making false statements and representations.

The charges carry various maximum penalties – ranging from 5 years in prison to 20 years in prison.

What led to the Trump federal indictment?

Shortly after Trump left office in January 2021, the National Archives asked Trump to return presidential documents or records, citing that they were the property of the federal government. Trump initially resisted but eventually agreed to turn over 15 boxes of materials – some of which contained documents marked “classified.”  Due to the classified nature of the documents, Archives officials alerted the Justice Department which launched an investigation.

In April 2022, the Department of Justice issued a subpoena to Trump ordering him to turn over all remaining classified documents at his Mar-a-Lago estate in Florida. In the following weeks, his attorneys handed over a folder containing classified records along with a letter that allegedly assured federal officials that was everything.

Four months later, the FBI raided Trump’s estate and allegedly recovered additional boxes containing classified material, along with personal items and other non-classified presidential records.  Two weeks later, Trump sued to reclaim the property and a court battle followed.

On November 16, 2022, Trump announced he will run for reelection. Four days later, U.S. Attorney General Merrick Garland appointed U.S. Special Counsel Jack Smith to oversee the classified documents investigation.

A grand jury investigation ensued and, on June 8, 2023, Trump announced on social media that he had been indicted. The U.S. Justice Department later unsealed the indictment, which alleges that Trump had stored in his boxes 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 indictment states that 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.”

Who is Jack Smith?

Jack Smith, the man appointed to investigate former President Donald J. Trump, is a long-time prosecutor with the Justice Department.

Born on June 5, 1969, in Clay, New York, Smith graduated from the State University of New York at Oneonta in 1991 before attending Harvard Law School. He began his career as a prosecutor in the Manhattan district attorney’s office shortly after graduating and moving to a similar role at the U.S. attorney’s office in Brooklyn.

Smith’s appointment as special counsel in November 2021 came with the duty of overseeing two investigations into Mr. Trump: one into his attempt to overturn the 2020 election, including the lead-up to the Jan. 6, 2021, attack on the Capitol, and the other into Mr. Trump’s retention of classified materials at his residence in Florida.

What is a federal indictment?

A federal indictment is a formal accusation issued by a grand jury that charges an individual or entity with committing a federal crime. It is a legal document that outlines the specific charges and alleges that the person or entity has violated federal law. The indictment is typically presented by a federal prosecutor and serves as the basis for initiating criminal proceedings in federal court. It indicates that there is sufficient evidence to proceed with a trial and allows the accused party to be formally notified of the charges against them.

What is a federal grand jury?

A federal grand jury is a group of citizens convened by the federal government to determine whether there is enough evidence to formally charge someone with a federal crime. The grand jury is composed of a panel of individuals who are randomly selected from the community and serve a specific term. Their primary role is to review evidence and testimony presented by prosecutors in order to assess whether there is probable cause to bring criminal charges against an individual. Federal grand juries are comprised of between 16 and 23 people and each case must receive at least 12 votes establishing that probable cause exists that the target committed a specific federal offense.

Unlike a trial jury, which determines guilt or innocence, a grand jury’s function is to investigate and decide whether there is enough evidence to proceed with a criminal case. This is done at a probable cause level. The proceedings of a grand jury are conducted in secret, and the accused person is not present during the jury’s deliberations. The purpose of this secrecy is to protect the integrity of the investigation and safeguard the identities of witnesses.

If a federal grand jury determines that there is sufficient evidence, they issue an indictment, which formally charges the individual with the alleged federal crime. The indictment initiates the legal process and allows for the accused person to be brought to trial in a federal court.

What happens next now that Trump has been indicted?

Trump has been ordered to report to the federal courthouse in Miami at 3 p.m. on  Tuesday, June 13 for an arraignment. He will appear before a judge to hear the charges against him and enter a plea of guilty or not guilty. Learn more about the stages of a federal criminal case.

Timeline of a federal criminal case

Will President Trump be Detained Pre-Trial?

The Government may seek detention pending trial. In fact, prosecutors often do in federal cases. However, it is unlikely that President Trump would be detained. First, this is not a case where presumption to detain the accused exists. Certain crimes like drug crimes have a presumption against release. 
Second, the law says that if measures less restrictive than confinement can be imposed, they should be considered. Given the Secret Service knows where any former president is at any given time. the Government would be hard-pressed to show that Trump is a flight risk or a person that presents a risk to public safety that would warrant detention. 

Could Trump go to prison if convicted federally?

The federal charges for which Trump is accused are serious and carry possible prison time. If he is convicted by a jury – and that is a big IF – a federal judge will determine his sentence after a hearing. Learn more about sentencing in the federal system.

How Are Trump’s federal charges in Florida different from his state charges in New York:

These are two completely separate investigations stemming from entirely different allegations. One case is being prosecuted by the state of New York, while the other is being prosecuted by the federal government. Here’s a quick overview of both:

New York State Hush Money Case

Trump has been indicted by a New York grand jury for 34 counts of falsifying business records stemming from accusations that he provided hush-money payments to a former adult film star in 2016. The payments were allegedly part of a scheme to suppress Stormy Daniels’ claims when had an affair with Trump. The case is being prosecuted by the Manhattan District Attorney’s Office. A felony charge of falsifying business records is punishable by up to four years in prison in the state of New York.

Federal Classified Documents Case

Trump has been indicted by a federal grand jury on seven counts of violation of federal law, stemming from accusations that he mishandled classified documents. The is being prosecuted by the U.S. Attorney’s Office. He faces numerous counts, the most serious of which is punishable by a maximum of 20 years in federal prison in the U.S.

And while state and federal cases have some similarities, there are also very distinct differences between the two systems. For example, in state cases, juries typically decide punishment. In federal cases, only a judge decides. Learn more about the difference between state and federal cases.

Which Case Will Go First?

There is nothing in the U.S. Constitution or federal law that says which case – a federal case or a state case – gets priority or that prosecutions must proceed in the order in which an indictment is issued. So, it remains to be seen which case will go first. Typically, federal cases proceed much quicker than state cases, but there is nothing typical about either one of these cases.

Can Trump Still Run For President?

Absolutely. The United States Constitution outlines the requirements to run for President in Article II, Section 1. According to the Constitution, a candidate must meet the following criteria to be eligible for the office of President:

  • Natural Born Citizen of the United States
  • At least 35 Years Old
  • A resident of the U.S for at least 14 years

There is nothing that prohibits Trump from running for president while under state or federal indictment. In fact, he has used both criminal cases to invigorate his run for President of the United States.

Varghese Summersett is a premier criminal defense firm based in Fort Worth, Texas. Our attorneys focus exclusively on criminal law and represent clients charged with crimes at both the state and federal level. We handle everything from DWI to capital murder to white collar crime. Collectively, our attorneys bring together more than 100 years of criminal law experience and have tried more than 550 cases before Texas juries. All of our senior attorneys served as former state or federal prosecutors and four are Board Certified in Criminal law, the highest designation an attorney can reach. We are the firm people turn to when the stakes are high and they are facing the biggest problem in their lives. - Contact Varghese at  
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