David Webber also addresses an emotional vigil attended by thousands, saying "I've lost my baby boy".

Even before last Thursday’s indictment in United States v. Donald Trump, public speculation swirled about whether the former president had taken classified documents not just to  Mar-a-Lago but also to his residence and golf club in Bedminster, New Jersey. The indictment answered that question with a bang while presenting a new puzzle about why Trump isn’t facing even steeper charges.

According to the Justice Department and a taped recording of the former president, Trump took classified records from Mar-a-Lago to Bedminster, where he showed off the contents of such records to others. The indictment alleges that Trump showed a map to a political ally and also showed a writer and a publisher a secret military plan to attack Iran. 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.

But these two allegations raise a question: Why did Special Counsel Jack Smith charge Trump with illegal retention of classified documents but not with dissemination of such materials? And is that decision final, or could dissemination charges still be in the works?

[Read: Will Trump get a speedy trial?]

Trump’s Bedminster conduct, as described in the indictment, appears to fit the description of two federal offenses designed to keep America’s national-security secrets safe. One makes it a crime to intentionally communicate national-defense information to people not authorized to receive it, and the other makes it a crime to intentionally disclose classified information to the same. These are more serious crimes than willful retention of such documents, which is done to prevent possible leakage. Deliberate dissemination is the leakage itself.

The Justice Manual, the Department of Justice’s guidebook on criminal procedure, as well as guidance from the attorney general’s office, advises prosecutors to give strong consideration to charges of dissemination before making them. According to the manual, once a determination is made that an indictment is warranted, “the prosecutor must select the most appropriate charges,” and “ordinarily, those charges will include the most serious offense that is encompassed by the defendant’s conduct and that is likely to result in a sustainable conviction.” Attorney General Merrick Garland has indicated that the prosecutor can consider a number of factors in deciding whether to bring the most serious charges.

Smith appears to have taken a cautious, narrow approach. Even though the indictment describes alleged dissemination and disclosure of national-security secrets, the indictment did not charge Trump with those offenses.  

One possible explanation for his decision: venue. The Constitution requires prosecutors to bring charges in the location—or venue—where the alleged criminal conduct took place. Justice Department prosecutors could not necessarily bring charges against Trump in Miami for alleged criminal conduct that occurred in another state, in this case New Jersey. But the absence of such charges in the indictment raises the intriguing possibility of another indictment to come, in a jurisdiction, no less, with a pool of jurors and judges more favorable to the government’s case against Trump.

[Juliette Kayyem: The threat from Trump’s supporters has evolved]

The government could make a solid argument that Florida is, in fact, an appropriate location to bring the charges for dissemination at Bedminster. “Any offense against the United States begun in one district and completed in another,” according to a congressional statute, may be “prosecuted in any district in which such offense was begun, continued, or completed.” Just last year, the Court of Appeals with jurisdiction over Florida applied that statute in an analogous situation, holding that a defendant charged with storing drugs in Alabama and transporting them to Tennessee for distribution could be prosecuted in Alabama for drug distribution.

But perhaps Smith did not want to count on the Supreme Court to recognize Florida as an appropriate venue. Judges have not issued definitive rulings on how the law of venue applies to the national-security statutes under which Trump has been charged. Plus, any creative law student—or judicial clerk fresh out of law school—could find ways to distinguish the conspiracy to possess and sell drugs in another state from the crime of disclosure of classified information. Smith might have reasoned that the government could lose on the issue of venue for any dissemination charges it tried in a Florida court. And that could potentially be fatal to ever bringing those charges even in the place that’s an obvious venue option: New Jersey.

For example, with regard to Trump’s alleged disclosure of U.S. attack plans against Iran, it is possible, based on the publicly available facts, that Trump shared the number of U.S. troops required to attack Iran, but not the actual document outlining the attack plans. That would not make his conduct any less criminal—the law specifically prohibits verbal disclosure of such information, not just documents. But if the alleged crime was verbal communication, that crime arguably did not “commence” in Florida with the physical transportation of boxes to New Jersey.

Another possible explanation for why Smith didn’t charge Trump for the more serious offenses has to do with the range of prison time the defendant could be subject to. A conviction for any of the 31 counts Trump faces under the Espionage Act for retention of national-defense information would already yield the maximum penalty available under the federal sentencing guidelines. That is regardless of whether additional counts for dissemination are included. In evaluating a proper sentence, the judge could still take into account the two alleged instances of dissemination—there is no need for the prosecutors to obtain separate convictions on those counts for that conduct to be considered in the sentencing.

[David A. Graham: The stupidest crimes imaginable]

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. 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.

In fact, the Miami indictment conspicuously excludes many facts surrounding Trump’s actions in Bedminster: what boxes were taken there, what they contained, how they were kept at the golf club. This silence suggests that there might be more to come from the famously hard-charging Smith and his team of prosecutors, who put together an otherwise highly detailed 49-page indictment.

Smith might still decide against bringing a separate indictment for dissemination, because such a move could be painted as overcharging. The government usually tries to avoid being seen as piling on, at least in such a high-profile matter. But if Cannon acts consistently with her prior Trump-friendly rulings, which were twice found by unanimous panels of conservative appellate judges to be both factually and legally flawed, Smith might go looking for another way to ensure accountability—and another venue where he could do so.

Donald Trump has long had the power to turn insignificant moments into days-long news events, but on Tuesday he managed something even more difficult: He did the reverse. The former president of the United States was arrested and arraigned on 37 felony charges, and it felt like an anti-climax.

Several factors explain this. The potent and precise indictment, covering Trump’s attempt to conceal highly sensitive national-security documents, was unsealed on Friday, so no new information emerged today. Despite fears of some observers about violence or disruption, Trump came and went from a federal courthouse in Miami without serious incident. Americans have become so accustomed to a circus following Trump everywhere he goes that anything else is a surprise. Television networks aired wall-to-wall coverage of … well, what, exactly? Cameras and recordings weren’t allowed in the courtroom where he was arraigned, and Trump himself was barely seen on his way in and out.

[David A. Graham: The stupidest crimes imaginable]

Moreover, although these charges are more perilous than one filed in Manhattan, this isn’t the first time Trump has been indicted, and the idea that he would face charges—that a major presidential candidate would be facing so many legal troubles—has somehow become the new normal.

That left a Trump speech in New Jersey Tuesday evening as the ostensible marquee event—his first public remarks since he revealed last week that he’d been indicted. Yet this, too, ended up being a bit of a letdown, or at least a misdirection. Trump had lots of fiery rhetoric, but for all the heat, it shed little light on the case: what the legal issues are, or why Trump was so determined not to comply with the federal government’s requests to return records that did not belong to him.

“Today we witnessed the most evil and heinous abuse of power in the history of our country,” Trump said at the start of his speech, a bold claim that would come as news to any student of history, including graduates of middle-school social-studies classes outside of Florida. Things did not get better, or more factually based, from there. Only a fool would have expected a chastened Trump, and the fool would have been disappointed.

[David A. Graham: This indictment is different]

Trump blamed his prosecution on Joe Biden, whom he labeled “the most corrupt president” in U.S. history. There’s no evidence Biden had any role in the case, and the White House has said the president found out about the indictment only after Trump broke the news. Biden has carefully remained mum on the case since, though he no doubt relishes the charges against a rival whom he has criticized as a threat to U.S. democracy.

Trump also attacked Special Counsel Jack Smith, whom he said (without evidence) was “a raging and uncontrolled Trump hater.” Trump added, “I’ve named him ‘Deranged Jack Smith.’” The ad hominem attack demonstrates both how his nickname game has weakened and perhaps also why he struggles to hire and keep attorneys.

But most of the president’s speech skirted any kind of real engagement with the charges against him. His central point was that he had the right to possess the documents he did under the Presidential Records Act, and that as president he had the power to declassify them. These arguments are neither new nor relevant. Trump has used them since the Mar-a-Lago search, though he has provided no evidence for declassification.

[Tom Nichols: The United States v. Donald Trump]

The problem for Trump that his indictment sidesteps these matters. Trump complained that the charges never mentioned the Presidential Records Act, and he is correct: It doesn’t engage with the question of whether he had a right to possess the documents. Instead, all of the charges focus on his actions after a May 2022 subpoena to return them. Once that request was made, he allegedly went to great lengths to hide documents from the federal government and even from his own attorneys, and this is where Smith homed in.

Following Trump’s explanations was also difficult for anyone who isn’t immersed in the right-wing discourse. He served up a conspiratorial word salad, tossing together the Clinton socks case and acid-washing and Burisma. The former president did offer a partial answer to the greatest mystery of the case: Why was Trump so determined to keep the documents?

“Many people have asked me why I had these boxes,” he said. “The answer, besides having every right under the Presidential Records Act, is these boxes were containing all types of personal belongings,” including shirts and shoes. But chaotic storage is no excuse for violation of the law, and it hardly explains his dogged attempts—detailed by his own attorney—to avoid handing over documents such as military attack plans.

Once liable to start speaking and continue for a couple hours, Trump has been more concise in some of his recent speeches. As he wrapped up Tuesday, after just 30 minutes, he complained that the Justice Department had broken an unwritten rule against prosecuting a former president and current presidential candidate. The risks of letting Trump continue to flout the law with impunity arguably outweigh the downsides, but the indictment does carry risks.

“You just don’t, unless it’s really bad,” Trump said. He had unwittingly delivered the most illuminating commentary of the day.