Trump's Indictment Problems May Not Be Over: Ex-Prosecutors

Donald Trump could theoretically be indicted for allegedly disseminating classified materials at his Bedminster golf club in New Jersey, argue two former federal attorneys and law professors.

Trump was arraigned Tuesday at a Miami, Florida, courthouse on 37 counts related to his alleged mishandling of classified documents discovered at his Mar-a-Lago residence in Palm Beach. The former president, who was previously indicted in New York for allegedly signing off on hush money payments ahead of the 2016 election, pleaded not guilty to the crimes.

Ryan Goodman, former special counsel to the general counsel of the Department of Defense and founding co-editor-in-chief of the national security online forum Just Security, and Andrew Weissmann, the former lead prosecutor in Robert Mueller's Special Counsel's Office, wrote in The Atlantic that charges could potentially be filed in New Jersey based on the assertions made within the indictment issued last Friday.

The two New York University law professors referred to a taped recording of Trump and information outlined by the Department of Justice (DOJ), in which Trump allegedly transported classified documents from Mar-a-Lago to Bedminster and revealed their contents to others—including a map to a political ally, as well as a military plan to attack Iran to a writer and publisher.

"These two episodes were arguably the most egregious allegations of criminal wrongdoing mentioned in the indictment; they allege not just the improper retention of our nation's most highly classified information, but the intentional communication of such information," Goodman and Weissmann wrote, pondering why special counsel Jack Smith did not include the dissemination of materials as part of the 37 charges.

They mention the DOJ's guidebook on criminal procedure, which states that prosecutors "must select the most appropriate charges" that ordinarily include the defendant's most serious offense "and that is likely to result in a sustainable conviction."

"Failure to include appropriate charges for which the proof is sufficient may not only result in the exclusion, of relevant evidence, but also may impair the prosecutor's ability to prove a coherent case, and lead to jury confusion," the manual also states.

Smith's "cautious, narrow approach," the professors wrote, may be due to the alleged crimes being committed in Florida and not New Jersey—even though a congressional statute says that crimes that began in one state and finished in another can be "prosecuted in any district in which such offense was begun, continued, or completed."

Another reason to leave potential dissemination of documents out of the indictment could be due to the fact that Trump's alleged breaking of the law as it pertains to the Espionage Act could already yield a maximum legal penalty, rendering such other charges unnecessary.

"The legal uncertainties that surround bringing charges in Florida for dissemination of national-security secrets in Bedminster leaves open the possibility that charges might yet be brought in New Jersey—a backup plan of sorts for Smith," Goodman and Weissmann wrote.

"If Aileen Cannon, the Florida judge assigned to the case, were to seek to pocket-veto the charges before her by, say, scheduling the trial for after the 2024 presidential election, the special counsel would be able to sidestep her tactic by proceeding with charges in New Jersey."

Former federal prosecutor Joyce Vance tweeted that the possibility of an additional indictment is "a very interesting possibility."

"The Bedminster conduct can't be charged in Florida, so I'd view this less as a back up & more as a compelled separation of different criminal conduct under the law," Vance wrote. "Trump could always move to consolidate the cases in one court."

But national security attorney Bradley Moss tweeted that unless more information can be gathered from the audiotapes, a separate indictment would be "too attenuated and just muddies the waters."

"Absent some additional, substantial evidence of actual dissemination beyond the bloviating by Mr. Trump we already know about, I simply do not see any value in bringing a separate indictment for unlawful dissemination," Moss told Newsweek.

Nick Akerman, former assistant special Watergate prosecutor and former assistant U.S. attorney for the Southern District of New York, previously told Newsweek that Trump's alleged activity is more serious than the classified document situations involving President Joe Biden and former Vice President Mike Pence.

Akerman said that Trump did it "totally intentionally, as evidenced by the fact that [Trump] was using this stuff at Bedminster."

Newsweek reached out to Goodman, Weissmann and Vance via email for comment.