On Thursday, June 8, the Justice Department released a 38-count indictment in the classified documents investigation of former president Donald Trump, charging him with willful retention of sensitive documents relating to the national defense, obstruction of justice, conspiracy, and false statements to government investigators. This marks the first time that a former president has faced federal criminal charges. Here, criminal law expert Professor David Sklansky discusses the charges and what might come next in this case.

Can you explain the main charges?

Trump was charged in only 37 of the counts; the last one just concerns his co-defendant. The number of counts in an indictment isn’t always terribly significant, but in this case 31 of the counts relate to 31 separate, sensitive documents that Trump retained well after the government began efforts to recover them. So the number does matter here—although less than the overall seriousness of the charges.

How serious are the charges? Special Counsel Jack Smith described it as a defense of national security case. Are the Espionage Act charges—the ones involving the willful retention of the documents—particularly troubling? Do they carry stiff penalties?

All of the charges here are serious, and they all carry substantial possible sentences, ranging from five years for false statements to 20 years for obstruction of justice. The Espionage Act charges carry a maximum sentence of 10 years. And the factual allegations in the indictment are deeply troubling. They correspond, in broad outline, to the kinds of charges we’ve expected this investigation might produce. But the details are pretty stunning – the details about the extent of Trump’s personal involvement in how the documents were handled, the details about how sensitive the documents actually were, the details about how carelessly they were handled, the details about the length to which Trump went to hide the documents and avoid returning them to the government, and to have his representatives actively mislead the government and suppress evidence.

How solid is the DOJ’s case?

It’s hard to assess the government’s case until it is actually presented in court. But the indictment goes into unusual detail about the nature of some of the evidence that Smith and his team of prosecutors say they have assembled. This includes an audio recording of Trump showing one of the documents he illegally retained to a group of people and making clear that he knew that it was sensitive and classified.

Do you see a plausible defense for the former president? 

It’s hard for me to imagine what kind of a defense his lawyers could mount. Trump and his supporters have suggested that he has been unfairly singled out for political reasons, but to establish a claim of selective prosecution, they’d have to show that prosecutors have given a pass to other people who violated the law in similar ways. And the indictment makes clear this isn’t just a case about mishandling classified documents; it’s about unusually sensitive documents—for example, relating to other countries’ nuclear capacities—that Trump went out of his way to hold onto, to hide from the government, and to lie to the government about, even after the government made clear the documents needed to be returned.

What will happen next?

Trump will appear in court in Miami next Tuesday, at which point he may or may not enter a plea, and a trial date may or may not be set.

Trump’s former aide Walt Nauta has also been charged. Does that tell us something about the Trump case?

Nauta, Trump’s co-defendant, has been charged with moving boxes of documents, at Trump’s direction, to hide them from the government and even from Trump’s own lawyers, and also with lying to FBI agents about what he knew about the documents and how they had been handled. It will be interesting to see whether he decides to try to fight this all the way to trial or instead to plead guilty and possibly receive credit for cooperating with the prosecution.

Is there anything else you’d like to add?

The special counsel, Jack Smith, urged people to read the indictment, and I hope people will do that. Charges aren’t evidence, let alone a conviction, and Smith also stressed, properly, that Trump and Nauta are entitled to the presumption of innocence. But this really isn’t just a case about mishandling documents, and it’s hard to get a full flavor of that without reading the charges and the prosecutors’ claims about what they will be able to prove.