The indictment of former President Donald Trump on charges of mishandling classified documents is an overreach by the government, according to Paul Kamenar, counsel for the National Legal and Policy Center. Kamenar also sees the charges as a potential rallying point for Trump’s supporters.
“I think the government has overreached in this area and I think they’re going to have a hard time to prove these charges and convict Donald Trump,” Kamenar said in an interview with NTD’s “Capitol Report” on Friday.
On Friday, special counsel Jack Smith announced a 37-count indictment against Trump. The indictment includes 31 counts of “willful retention of national defense information,” as well as other counts of withholding a document or record, “corruptly” concealing a document or record, concealing a document in a federal investigation, conspiring to obstruct justice, scheming to conceal materials, and making false statements. The indictment also alleges Trump showed classified documents to other people on two separate occasions in 2021.
Kamenar said the indictment is a “mixed bag of charges.”
“They have to prove both a willful and knowing intent to violate the law, and I think that’s going to be difficult for the government to prove his mental intent, because Trump all along has said that he has the right, as he did, to declassify documents as president of the United States. And when he left office, he took these documents with him, and he’s said those were declassified,” Kamenar said.
Trump has asserted he declassified the documents that FBI agents recovered in a raid on his Mar-a-Lago estate last summer. However, the special counsel indictment refers to audio recordings in which Trump indicated he possessed documents that he believed were still “highly confidential” and “secret.”
In a July 2021 meeting at his Bedminster, New Jersey, golf club, Trump allegedly described a “plan of attack” he said was prepared for him by a senior military official. “As president I could have declassified it,” Trump allegedly said in an audio recording of the meeting. “Now I can’t, you know, but this is still a secret.”
Potential Legal Risk for Trump
The “willful retention of national defense information” charge, of which Trump faces 31 counts, carries a maximum sentence of 10 years in prison. Three more charges of concealing documents and a charge of conspiracy to obstruct justice each carry a 20-year maximum prison sentence. The scheme to conceal documents charge and the false statements charge also carry a maximum term of five years in prison each.
This 37-count federal indictment comes after Trump was charged by Manhattan District Attorney Alvin Bragg in a 34-count indictment alleging he falsified business records while getting adult film actress Stormy Daniels to agree to a non-disclosure agreement.
Kamenar said the Manhattan case is derived of “basically nickel and dime charges,” and even if Trump is found guilty on any of the charges, “those don’t involve jail time.”
He said the special counsel indictment in the classified documents case, by comparison, is more serious because they are federal charges with a potential 20-year prison term. Still, Kamenar predicted Trump is not likely to see the worst of the potential punishments in this case, considering how other high-profile figures have been treated in past classified documents cases.
“Even if they do find him guilty, I think the punishment would be basically probation. After all, that’s what the court did with [Gen. David Petraeus],” Kamenar said.
In 2015, Petraeus was accused of sharing classified documents with his biographer, with whom he had been involved in an extramarital affair. Petraeus pled guilty to the unauthorized retention of classified information and lying to the FBI and CIA about his handling of the documents. He was sentenced to a two-year probationary term and the payment of a $100,000 fine.
Kamenar also noted the case of Sandy Berger, a national security adviser to former President Bill Clinton. Berger was accused of taking five copies of a classified report and sneaking them out of a classified reading room by stuffing the documents under his clothing. Berger pled guilty to the allegations and was also made to serve a two-year probation term and pay a $50,000 fine.
Kamenar said a much harsher sentence for Trump would be evidence of a “dual system of justice.” He also raised concern about the fact that former Secretary of State Hillary Clinton and President Joe Biden both haven’t been charged for their own handling of classified information.
Charges Could Unite Trump’s Base
Trump, who is running to replace Biden in the 2024 presidential election, has already cast the special counsel investigation as political interference by the Biden administration. Kamenar echoed those concerns in his own comments with “Capitol Report.”
“This is interfering with the presidential race because as we know, Donald Trump is leading in the polls to be the Republican nominee. So these charges will interfere with his campaigning. I think they want to go after him so he won’t be the nominee,” he said.
Biden has insisted he did not ask the Department of Justice or the special counsel’s office to charge Trump.
Whether or not the indictment was intended as a political attack to hurt Trump’s 2024 campaign, Kamenar said the indictment could bolster Trump’s claim to the 2024 Republican presidential nomination.
“Supporters will say he’s being persecuted and rally around him and actually, you know, solidify his base and support him and he’ll be the nominee,” he said.
The idea that the indictment could boost Trump’s 2024 prospects is not unprecedented. In the four days after he was indicted in Manhattan, the Trump campaign reportedly raised $8 million. The Trump campaign also saw a boost in GOP primary polls following the indictment in April.
Jared Craig, founding partner and president of the pro-Trump political action committee Legacy PAC, said rallying to Trump’s defense is exactly what the Republican Party ought to do.
“I honestly think that the GOP should rally around defending President Trump because this sets a very bad precedent … and it seems third-world nation,” Craig told “Capitol Report.”
Craig also said Republican leaders who remain silent on Trump’s case are not loyal to the “America First” agenda and should be replaced.
“We’re here lockstep, and we all should be in line with the agenda and the policies, the America First candidates, with President Trump at the very top of that,” Craig said.