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The Trump Indictment: What Can a Unitary Executive Do?

The question at the heart of the indictment is the extent of executive power.

(Xinhua/Hu Yousong via Getty Images)

Nearly a year after the FBI executed its shocking raid on Donald Trump’s residence at Mar-a-Lago, the special counsel on the case, Jack Smith, has issued his thirty-eight–count indictment. The first months of Trump’s 2024 presidential run have already seen the Manhattan District Attorney indict Trump on business fraud charges in New York state court and a civil court find Trump liable for sexual assault, with additional legal battles likely soon to come. To Trump’s base and far beyond, these continuous civil and criminal cases look like an attempt by the powers that be to do something (anything!) to stop another potential Trump presidency. 

Should the current indictment be seen as anything more than another baseless attack on Trump’s presidential run? The answer is yes: If the special counsel can provide witnesses to actually prove the allegations made in this indictment, then this case is distinct from the endless politically motivated hit jobs. This case has real important facts, real questions of law, and raises real issues around our understanding of the Constitution, the unitary executive, and the precedent being set by filing criminal charges against a former president of the United States.


While the final seven counts of the indictment are based on concealment of documents and misrepresentations to the authorities, the heart of the alleged criminal conduct is found in counts 1–31. These charges involve willful retention of national defense information, and the statute itself deserves some attention. 18 U.S.C. 793 lays out various crimes related to unauthorized access to national defense information. The core provisions focus on criminalizing conduct in which a person has unauthorized access to national defense information and shares it with an unauthorized person or otherwise uses the information in a way that would be injurious to the United States. But several of the statutes create a separate crime: Not only is it a crime to use the documents to injure the United States, but also for an unauthorized person to “willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.” 

The charges in counts 1–31 have nothing to do with whether the documents are classified. While much has been written about the classification process and whether a president can declassify documents at will or must follow a certain procedure, the question does not affect the substance of the indictment. The charges are that Trump unlawfully retained national defense information, and nowhere in 18 U.S.C. 793(e) does the statute mention that documents must be classified to constitute the crime. The presidential power to (de)classify is fascinating but largely irrelevant to this indictment.

While unauthorized possession of national defense information is problematic in itself, it strikes one as odd that the same statute includes provisions related to both sharing secret defense documents with an enemy (which is espionage and treason) and merely retaining unauthorized documents without returning them to the government. The former sounds like a crime deserving of capital punishment, while the latter (mere retention of documents, without sharing them or even intending to) seems categorically different and much less grave.

Since the indictment claims Trump willfully retained the documents, not that he shared them with an enemy, this limits the scope of which facts are relevant. The government must prove that Trump had “unauthorized possession of, access to, or control over” documents relating to the national defense and that he willfully retained those documents and failed to return or deliver them to the government. And because it seems Trump knew he had these documents and did not turn them over when the federal government began asking for documents, it seems that he willfully retained them and failed to deliver them to any officer or employee of the United States. 

So what are the relevant facts needed to prove these charges? It is obvious that Trump retained documents after he left the White House and was no longer president. It also seems clear that some of these documents were related to national defense and would be injurious to the United States if they had gotten into the hands of our foreign enemies. If the special counsel can produce witnesses to prove the allegations made in the indictment, there is also evidence that Trump spoke to unauthorized people on at least two occasions, when he was no longer president, about these documents. 


The fact that he allegedly referenced or showed sensitive national defense documents to these people while knowing that he shouldn’t be doing so seems to show a willful or knowing intent. Putting aside the very real possibility that a prosecutor could find witnesses willing to perjure themselves in an effort to take down Trump at any cost, it does look like there is evidence to prove the elements of counts 1–31. Well, almost.

The outstanding question is whether Trump was unauthorized to possess the national defense documents at issue. If Trump rightfully possessed those documents, if they were his documents, then the whole indictment falls apart. If Trump was not unauthorized to possess anything, and thus was not concealing or misrepresenting anything when he claimed that he had no other documents that needed to be turned over, there is no longer evidence to prove an essential element of (at least most of) the alleged crimes. 

By what authority are there rules within the executive branch agencies that can govern the president’s treatment of classified documents? Of course Congress can lawfully pass laws related to national defense and the protection of information that could harm the United States. But Congress cannot use that legislative power to restrict the constitutional powers of the president.  

The “unitive executive theory” periodically becomes a trendy topic during newsworthy uses of presidential power, but the theory itself is simple and based in the Constitution. Because Article II of the Constitution vests the executive power of the United States in the president, then, according to the Yale Law Journal, “The executive [branch] is headed by a single person, not a collegial body, and that single person is the ultimate policy maker, with all others subordinate to him.” This theory often gets disparaged as promoting tyranny or a monarch-like president, but it is actually quite reasonable. The president of the United States is the executive, and every other member of the executive branch (from the heads of the CIA and the State Department to the janitors in the Pentagon) is subject to the president and serves at his pleasure. 

Former Attorney General Bill Barr recently stated that “Battle plans for an attack on another country or Defense Department documents about our capabilities are in no universe Donald J. Trump’s personal documents. They are the government’s documents.” Now, from the perspective of a humble lawyer who has not a fraction of the experience or legal knowledge of Bill Barr, this is a strange statement. If Article II vests executive power in the president, then from January 2017 to January 2021, Donald Trump was head of the executive branch. Even documents as sensitive as battle plans or military capability explanations were created by members of the executive branch, subordinates of the president. Those documents were created for the executive. If that is the case, it is hard to understand how there could be “no universe” in which those documents are Trump’s documents. 

On one hand, such sensitive national defense documents are created for the executive to do his job as president, not for his personal pleasure. But on the other hand, it is difficult to justify allowing the executive branch (meas a whole (meaning career officers or employees of executive agencies who outlast the president but are absolutely subservient to him) to have any kind of right to the treatment of documents distinct from that of the president, for whom and under whom the documents were created. 

Admittedly, this question of how far the power of a president over these documents, especially once he leaves office, is not an easy question. But it is likely the question on which this whole federal indictment hinges. If our Constitution and our laws vest all executive power in the president, and if all documents created by his subordinate officers are properly his, then it is inappropriate to apply 18 U.S.C. 793(e) to documents created for a president during the time he was president. If the president is properly bound by this statute once he leaves office, if he only possesses these documents as executive with no authority to bring them home in his personal capacity when his term ends, then Bill Barr is probably right that “if even half of [the indictment] is true then he's toast.” 

We should be mindful of the ancillary issue of the terrible effects it may have on the nation when a former president is indicted once the opposition party takes power. But even if the Department of Justice should not have indicted a president as a matter of policy, the reality is they have done so. If the special counsel has the evidence the indictment says he does, then there is a good chance they can prove this case. Declassification is not the issue; the unitive executive theory is what matters. The scope of the president’s power over his executive agencies and the documents produced by them determines whether or not he is constitutionally authorized to possess those documents once he leaves office. This is the ultimate legal question at issue. 


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