What to expect from Trump’s prosecutors and from his defense attorneys in Florida.

Around 3 p.m. Tuesday afternoon, Donald J. Trump presented himself at the federal courthouse in downtown Miami for an arraignment, his initial appearance in a case known as United States v. Trump and Nauta. As is the case with so very many of these “trial of the year” movie-premiere years we’re living through, it’s easy to get hyperfocused on all the cars arriving and the photographers and the flashbulbs and the screaming fans in adorable costumes.

By Tuesday evening, Trump was headed to Bedminster, New Jersey, for a campaign speech, and after his speech, he had a fundraiser with donors who raised at least $100,000 for his campaign, with all invited to a candlelight dinner. Beneath all of this drama, this lawsuit stands as a deadly serious moment for democracy, for the rule of law, and for national security. And if you read the 49-page indictment filed by special counsel Jack Smith in this case, it is amply clear that the focus of this lawsuit is a grave and ongoing threat to national security, one that imperiled the U.S. intelligence community and the Defense Department in ways that almost defy belief.

So in keeping with our get-past-the-horserace legal analysis, on Slate’s legal podcast, Amicus, we wanted to dig in on what this case really involves and why it really matters, and we wanted to do that with Ryan Goodman.

Goodman is the Anne and Joel Ehrenkranz Professor of Law at the NYU School of Law. He served as special counsel to the general counsel of the Defense Department. His work has made important contributions to the law of armed conflict, human rights law, and U.S. national security law, and he is also the founding co–editor in chief of Just Security.

A portion of our conversation is transcribed below. It has been edited and condensed for clarity.

Dahlia Lithwick: Given that it seems as though the bulk of the charges are just about mishandling the documents, rather than trying to sell them or hand them off, are we ever going to be able to ferret out Trump’s actual motive here? And does that affect how he is eventually charged? Because nobody can tell. It doesn’t seem to be about money. It doesn’t seem to be about deliberately engaging in espionage. It seems like he’s just being Trumpy.

Ryan Goodman: I don’t think it affects the charges that are brought, but I do think it affects how likely it is to result in a conviction, because I think if [motive] could be buttoned down, it would be very convincing to a jury, so that they understand the full picture, that they understand the motivation. I think if we had a better understanding of motive, then I think it would also be very compelling as a full narrative, and it’s still this missing piece. And like you say, I also think that the answer to the missing piece might be: It’s Trumpy. Like, it’s a form of a narcissistic personality in which he just thinks, “It’s all mine.” He thought he was the state; he thinks he’s still the state, or the president. It’s mine. Nobody else should have it. So it’s just an extension of himself. He likes to have [the information]; it makes him feel powerful knowing he has it.

And then also sometimes, [he’s] showing it off as a trophy, as we know that he has done with other things that he’s picked up along the way, like Shaquille O’Neal’s sneaker. That’s why he is showing off his classified map to a political ally; it makes him feel powerful. But it would be really great to have the evidence of it. It might be mixed motives.

Does that change anything? The fact that he’s just waving around classified maps because he can, because he thinks they’re his?

Or does it mean more if he’s actually putting people at risk? The whole framing of this indictment is so painstakingly saying, “These are the sources and methods. This is who was burned. This is all the ways in which lives were in danger.” So if Trump neither knew nor cared, does it change anything?

I think it doesn’t necessarily changes anything, because it’s not an essential element of any of the crimes. It just has to prove that he willfully retained the documents. If we do get into a situation—this is not [what] the present charges [are]—but [if we get] charges that are based on sharing information, then it might actually have to be shown that he knew that it could be to the injury of the United States. But as straight-up documents, it doesn’t have to be shown.

I do think one thing that might easily happen in the trial is we have senior U.S. intelligence officials saying that because he compromised these documents, he then compromised certain highly classified programs, and we had to either drop human sources or drop certain programs. That is the kind of remediation that the government would need to necessarily take once they even just see the photograph of the boxes lined up on the ballroom stage, just to be like, “Well, we can’t assume that that stuff hasn’t been compromised.” And it goes to kind of a heart of the question as to: Was there any injury from this? And there is potentially massive injury to U.S. intelligence operations, U.S. national security, in that sense.

I think that could be driven home in a courtroom. And then, of course, it can also be driven home for the public at large to even just understand other ramifications of having so mishandled classified information, and what it means for allied relationships with other governments that are otherwise sharing information with the United States.

To say it as succinctly as I can: There’s a prospect this man becomes reelected to the White House. What do those [allied] governments think? Are they going to be sharing information over the next two years with the possibility that this same person who feels the ability to just keep that kind of information in his shower and on the ballroom floor of his public resort might do it again? I think that that has serious current-day implications.

There’s actually a pragmatic question connected to that that I’ve been dying to ask you, Ryan: How much are Jack Smith and his team prepared to disclose about this? It’s so clear, as you said, how painstakingly redacted this material is.

In order to show how much damage potentially has been done, you might have to burn your own mechanisms of intelligence-gathering and spycraft, and in some sense, burn your own allies. So how do you navigate that?

I think it’s one of the key issues to watch as this criminal procedure moves forward, because a lot of the pretrial motions will be about this very question, and it’s also why I’m very concerned about who is the judge. Is it still Judge Aileen Cannon making those calls?

Because under the Classified Information Procedures Act, there is a framework that Congress set up to deal with that very tension, and it is to allow the prosecutors to protect some of the information by allowing them to do a summary of the content of the documents. That’s one version of it.

But if a judge says, “No, I’m sorry, that would not provide the defendant with proper rights, because they can’t be convicted on the basis of secret information,” you have to give up the entire document so the jury sees it and the public sees it, or something like that. It’s where [the judge] can draw the line on that; [the judge] has enormous discretion.

That’s a big concern. So it was remarkable to me and to many other national security lawyers to see the high-level classification of the documents. It must be the case that the intelligence community has decided that they are prepared to risk some level of exposure at trial. And I do think it probably speaks to the intelligence community’s deep concerns about how important this case is for them. It might also speak to the possibility that Donald Trump’s action has so significantly burned some of these programs that indeed, that’s partly why they can share the documents, because it’s eroded their significance and value to the United States. I’m comparing this to other cases in which I’ve seen indictments for very similar things under the Espionage Act. This is a remarkable indictment, because usually the way that the prosecutors and the intelligence community think of it is that they look for the quote-unquote “Goldilocks documents.”

The Goldilocks documents are the ones that are not too highly sensitive that it would be exposing deep secrets, but not too low in their sensitivity or classification that it really would not compel a jury. Like you’re not going to bring documents marked as “confidential.” These are not in the Goldilocks zone. They’re not like the “secret” level. [The Trump documents] are the tippy-top, top-secret, compartmented information, code-worded. So much so that even the code word has to be redacted. So it’s really remarkable in that sense.

You’re hinting here that so much of this is going to be fundamentally unprovable, because you’re proving a negative, right? You’re proving what you can’t say: that these are the countries that no longer trust us. Yes, these are the programs we’ve had to shut down. These are the spies who had to be pulled. You can’t do any of that. What you’re describing is the system in which, in some sense, you go to trial with one hand tied behind your back, because all of the stuff that makes this catastrophic is the stuff that can’t be in this indictment, and in fact, can’t be proven in court.

Absolutely. The one only other piece that’s maybe different than all the times before, in a certain sense, is that I do think the current leadership of the intelligence community is more likely to be transparent compared to their more recent predecessors. This is in some ways growing out of the Ukraine war. The head of [the Office of the Director of National Intelligence] and the head of the CIA have been forward-leaning in declassifying information or revealing information in that situation, and I think they very well might be here, too, given how enormous the stakes are.

Ryan, I don’t want to waste even a nanosecond of your time on the really dumb claims that are being made about the Presidential Records Act and about the “Clinton sock drawer” defense [of Trump]. Some of it is debunked by the archives themselves. But I do wonder if there is any merit to some of the “legal” defenses. Put aside the political defenses. Is there anything that we should be taking very seriously because it’s a fundamental weakness of the case?

I think the case, to be honest, is airtight, absolutely airtight. The one legal vulnerability that I thought they might have is the venue. If they had brought the case in D.C., they were maybe in deep trouble, because it could have been determined that that was the wrong jurisdiction, because all the activity took place in Florida. And there’s this pending Supreme Court case that many in the audience might know about, strangely titled Smith v. United States—given that Jack Smith is a different Smith—in which the Supreme Court might very well say double jeopardy applies, that if you lose with Time One [prosecuting in an improper venue], you cannot then bring [the same case] in the proper venue for Time Two. So that was going to be the biggest legal vulnerability I could identify if I were to try to stretch my mind to think, “What is his defense?” The answer might be there is no legal defense. He committed the crime. I think it really is that.

If I were to try to stretch it, I would think maybe he can claim: It is true that they were not his documents, but the defendant thought they were his. It is true that they were not declassified, but the defendant thought that they were declassified, and therefore were not closely held national defense information. Well, it’s not true. His own lawyers told him that [the documents] were not his, and if he were to try that defense, he’d have to take the stand.

That would be a total debacle. Let me put it a different way as well. Looking at all of the prior indictments for retention of national defense information under the Espionage Act in the last 20-plus years—and I’ve looked at all of them because we wanted to look at similar cases and whether or not this case has been treated like them, seeing an indictment like this. If it were not Donald Trump, I would say of course the defendant is going to plead guilty. And it is the case that when you have these kinds of allegations, they are prosecuted, and then it usually will end up in a plea deal. But if it ends up in a plea deal, then those defendants, high-powered individuals, often get off with very minimal or no jail time.

So that’s a tragic part of our legal system. But David Petraeus, Sandy Berger, John Deutch: Guilty, guilty, guilty. Pled guilty. And then because of that pleading, they get no jail time. John Deutch got a pardon, as well. This defendant isn’t gonna plead guilty. So that’s the oddity of it. But it shows just how strong the case is, in a certain sense, to compare it against all these others