At long last federal prosecutors have filed charges against former President Donald Trump for crimes arising from his unlawful possession of classified documents. The charges are contained in what is called an indictment in the United States.

One aspect of the indictment merits the attention of prosecutors everywhere. Or at least for those considering charging senior government officials or ex-officials who, like Trump, can be expected to try to sway public or elite opinion by any means to escape convictions.

The Trump indictment is what American prosecutors call a “speaking indictment.”

All that U.S. law requires of an indictment is that it give defendants fair notice of the charges to allow them to prepare their defense. The Trump indictment could thus have simply said Trump retained classified documents without authorization, did not turn over all of them after receiving a subpoena, and lied about having them.

The are two advantages to a lengthier document, one that “speaks” to the charges. One, it justifies the case to a perhaps skeptical public. In the Trump case by providing facts that show how baseless are his protestations of innocence and claim the prosecution is political. Two, it will make it easier to persuade whoever will eventually sit on the jury. For the more the facts are repeated in media accounts, the more likely they will sink in with the citizens who will ultimately sit in judgment on the case.

The downside is the narrative depends upon witnesses repeating in testimony what the indictment states. If a witness changes his or her story at trial, it can undermine, sometime even fatally, the prosecution’s case. For example, the Trump indictment states at paragraph 46 –

“On January 17,2022, Trump Employee 2 and NAUTA [a Trump aide indicted with him] gathered 15 boxes from TRUMP’s residence, loaded the boxes in NAUTA’s car, and took them to a commercial truck for delivery to NARA.”

The prosecution will almost certainly call Trump Employee 2 to testify to these facts at trial. If the employee contradicts this statement on the witness stand, defense council will seize on it to discredit the government’s case.

Presumably, Trump prosecutors videotaped Employee 2’s testimony and could play the tape to impeach the employ’s contradictory trial testimony. But even where such clear evidence is available, having to go through the impeachment distracts from the prosecution’s case. It can also sow doubts about the case as a whole to one or more jurors. (I am betting if a videotape is played at any time, there will be a claim it is a “deep fake.” The trial judge would almost surely not permit such a claim to be raised in court but of course there is no way to prevent it from appearing in the media.)    

The downside risk in the Trump case is relatively slight. Many of the facts come from text messages or documents. There is a further advantage to filing a speaking indictment in U.S. cases when the evidence is documentary. It will almost certainly foreclose a last-ditch claim at trial that one or more of the documents are fake or have been altered. The defense will have had plenty of time to gather evidence in support of any such claim and will have been expected to present it during pre-trial proceedings.

I don’t know whether there are any restrictions on what prosecutors in other countries can say in a charging document.  Where they can file a “speaking” document, it would seem to be to their advantage to do so for the reasons above. Especially anytime there is a risk that “higher ups” will move behind the scenes to squelch the case.  The more public the facts supporting the charge, the harder it would be to do so.  

ADDENDUM —

From a June 10 Washington Post story by Isaac Arnsdorf and Hannah Knowles

Though Trump’s team had practice at responding to an indictment from the charges earlier this year in New York and the campaign was expecting charges in the documents case after the former president’s lawyers met with prosecutors Monday, advisers acknowledged surprise at the level of detail of the evidence against him in Friday’s indictment.

Some Trump supporters here also said they were rethinking their initial dismissiveness of the charges based on the specific allegations. Laurie Webster from Hull, Ga., said she grew more concerned after hearing some of the details on conservative host Erick Erickson’s radio show. https://www.washingtonpost.com/politics/2023/06/10/trump-indictment-speeches-georgia-north-carolina/