When Should a Former President Be Charged

Two weeks ago, a federal judge sentenced Robert Birchum, a former Air Force lieutenant colonel, to three years in jail for removing hundreds of secret documents from their authorized locations and storing them in his home and officer’s quarters.

In April, a judge sentenced Jeremy Brown, a former member of U.S. Special Forces, to more than seven years in prison partly for taking a classified report home with him after he retired. The report contained sensitive intelligence, including about an informant in another country.

In 2018, Nghia Hoang Pho received a five-and-a-half-year sentence for storing National Security Agency documents at his home. Prosecutors emphasized that Pho was aware he was not supposed to have taken the documents.

These three recent cases are among dozens in which the Justice Department has charged people with removing classified information from its proper place and trying to conceal their actions. That list includes several former high-ranking officials, like David Petraeus and John Deutch, who each ran the C.I.A.

Now, of course, the list also includes Donald Trump, who was arraigned in a Miami federal courthouse yesterday and pleaded not guilty to 37 charges.

Above the law?

Are federal prosecutors singling out Trump because of his signature role in American politics? Or are they basing their decision to indict him solely on the facts of the case?

Sean Trende, a political analyst with RealClearPolitics, has offered a helpful way to understand these questions — and specifically when a former president should, and should not, be charged with a crime.

Start by thinking about all the other people who had engaged in behavior similar to that for which the ex-president was charged with a crime. If just some of those other people were charged, the ex-president should not be, Trende wrote. Prosecutors have a large amount of discretion about which cases to bring, and they should err on the side of not indicting a former president because of the political turmoil it is likely to cause, he argued.

But if the ex-president did something that would have caused anybody else to be charged with a crime, he should be, too. “The president shouldn’t be above the law,” Trende explained.

There is ample reason to believe that the document case against Trump falls into the second category: Had any other American done what he is accused of doing, that person would almost certainly be prosecuted. “The real injustice,” the editors of The Economist magazine wrote yesterday, “would have been not to indict him.”

Consider: Prosecutors have accused Trump of removing classified documents from government property and bringing them home with him. Those documents contained sensitive information, such as military plans and intelligence about foreign militaries. Trump made clear to others that he knew he should not have the documents and took steps to mislead investigators about them, prosecutors claim.

It’s true — as Trump’s defenders repeatedly point out — that other government officials, including President Biden, Mike Pence and Hillary Clinton, have also mishandled classified information without having been charged with crimes. But those cases were very different from Trump’s. The transgressions seemed to be accidental. The officials returned the documents when asked. They did not try to mislead federal investigators.

Trump’s alleged actions instead resemble those of the obscure officials I mentioned at the top of today’s newsletter. His behavior also seems to have been much more brazen than that of Deutch and Petraeus.

This pattern helps explain why legal experts have been much more supportive of the Justice Department’s indictment of Trump than of the case in New York charging Trump with violating campaign-finance law. The New York case has made some experts uncomfortable because it lacked a clear precedent. It does not seem to pass Trende’s standard for when a former president should be charged with a crime. There are no good analogies.

The New York case relies on a novel combination of statutes to charge Trump with a felony for hiding payments he made to conceal a sexual encounter. Perhaps the most similar case — the trial of John Edwards, a former Democratic presidential candidate, also on charges of concealing payments connected to an affair — ended with an acquittal on one charge and a hung jury on five others.

By contrast, the list of analogies to the document charges against Trump just keeps growing. Next week, Kendra Kingsbury, a former F.B.I. analyst, is scheduled to be sentenced to federal prison. She has pleaded guilty to having brought hundreds of classified documents to her home in Dodge City, Kan.

The day’s news

• “We most certainly enter a plea of not guilty,” Todd Blanche, Trump’s lawyer, told the judge during the 50-minute courtroom appearance. Trump did not speak.

• Trump was fingerprinted at the courthouse, but did not get a mug shot taken. Officials considered it unnecessary because of his fame.

• The judge said Trump was not allowed to discuss the case with Walt Nauta, his personal aide, who is also charged. Nauta accompanied Trump to court, but his own arraignment was postponed because he does not yet have a Florida-based lawyer.

• Trump has a new nemesis: Jack Smith, the special counsel who charged him. Their paths finally crossed yesterday.

• What’s next? “The government will begin to reveal its evidence through the discovery process,” The Times’s Alan Feuer said. “Pretrial motions will be filed and argued. All that will likely take months.” Our colleague Maggie Haberman explained: “Trump is determined to fight this battle in the court of public opinion for as long as possible.”

• “Trump may well be waiting for a trial when voters cast their presidential ballots next fall,” Russell Berman writes in The Atlantic.

• President Biden spent his day meeting with the NATO secretary general and taking in a Juneteenth concert. “Anything but pay attention to Donald Trump,” The Times’s Michael Shear wrote.

• After leaving court, Trump visited Versailles Restaurant in Miami, where patrons sang “Happy Birthday” (he turns 77 today). He then traveled back to his golf club in Bedminster, N.J., and told supporters, “I did everything right, and they indicted me.” He displayed less energy than usual during the speech.

• Here’s a fact-check of Trump’s speech.

THE LATEST NEWS

International

• Four Colombian children who survived 40 days in the jungle after a plane crash had been fleeing for their lives.

• A woman in Britain was sentenced to prison for using abortion pills to end her late-stage pregnancy.

• A boat capsized on the Niger River, killing at least 103 people. Many of the passengers were returning home from a wedding.

Other Big Stories

• Consumer prices rose 4 percent over the past year, the slowest pace in more than two years. The Federal Reserve now appears less likely to increase rates at a meeting today.

• It’s the hottest June in decades, a reflection of global warming and El Niño.

• Cormac McCarthy, who explored a bleak world of violence in novels such as “The Road” and “No Country for Old Men,” died at 89. (Here’s a guide to his books.)

• Some leaders in the Southern Baptist Convention, the largest Protestant denomination in the U.S., are moving to expel churches led by women.

• The Olympic sprinter Tori Bowie died of complications from childbirth, an autopsy found.

Opinions

Trump’s indictment will test our court system. A citizen jury has the best chance at withstanding the political firestorm, Deborah Pearlstein argues.

“Lock him up,” Bret Stephens writes. And Thomas Friedman argues that Trump has broken America’s political system.

Roger Worthington donated money to plant one million new trees. He wishes he had protected old ones instead.

Here are columns by Tom Edsall on the Alabama redistricting case and Paul Krugman on air pollution.

MORNING READS

Unique acoustics: A beautiful evening of music in New York City’s sewer.

Bot M.D.: Some doctors are using ChatGPT to communicate empathetically.

Hours and years: Would time feel more valuable if we weren’t so focused on our careers?

Lives Lived: After the filmmaker Agnes Varda died in 2019, her contemporary Jean-Luc Godard said there were only two original French New Wave directors left — himself and Jacques Rozier. Godard died last year; now Rozier is gone, too, dead at 96.

SPORTS NEWS FROM THE ATHLETIC

A swift ascension: The Vegas Golden Knights are N.H.L. champions after defeating the Florida Panthers, 9-3.

Drama in Buffalo: The wide receiver Stefon Diggs was not present on the first day of mandatory minicamp, a troubling sign for the Bills.

Next move: Rory McIlroy was the face of PGA Tour resistance before last week’s shocking golf merger. Now what?

ARTS AND IDEAS

Gen Z debauchery: A new wave of sex comedies are coming to theaters this summer, revitalizing a faded genre. The films avoid the problematic antics of old movies like “Porky’s” and “American Pie” and instead frame their raunchy fun around diverse casts and female desires, Leah Greenblatt writes.

More on culture

• Paul McCartney says A.I. helped complete one last Beatles song, to be released this year.

• Pat Sajak, who is retiring after 41 years of hosting “Wheel of Fortune,” succeeded by being present without dominating the show, The Times’s James Poniewozik writes.

THE MORNING RECOMMENDS …

Skewer, then grill vegetables to turn them velvety soft and add flavor.

Listen to this playlist when you’re gardening.

Gaze at the stars in a national park.

Make cold brew at home.

Soak your feet for a better night’s sleep.

GAMES

Here are today’s Spelling Bee and the Bee Buddy, which helps you find remaining words. Yesterday’s pangram were abomination and ambition.

And here are today’s Mini Crossword, Wordle and Sudoku.

Thanks for spending part of your morning with The Times. See you tomorrow. — David

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