Donald Trump’s former chief of staff, John Kelly, says he is ‘scared s***less’ of criminal charges

Mr Trump was arraigned at a federal court in Miami, Florida on Tuesday over his alleged illegal retention of sensitive national security documents after leaving office.

He pleaded not guilty to 37 charges: 31 counts of wilful retention of national defence information, and one count each of conspiracy to obstruct justice, withholding a document or record, corruptly concealing a document or record, concealing a document in a federal investigation, scheme to conceal, and making false statements and representations.

“Today we witnessed the most evil and heinous abuse of power in the history of our country,” he said in a subsequent speech.

“They ought to drop this case immediately, because they’re destroying the country. I had every right to have these documents. I did everything right and they indicted me.”

Speaking to The Washington Post, General Kelly, who served as Mr Trump’s chief of staff from 2017-2019, said: “He’s scared s***less.”

“This is the way he compensates for that. He gives people the appearance he doesn’t care by doing this,” Gen Kelly said, alluding to Mr Trump’s catch-up with supporters in front of the cameras at a restaurant after his court appearance.

“For the first time in his life, it looks like he’s being held accountable. Until this point in his life, it’s like, ‘I’m not going to pay you, take me to court.’ He’s never been held accountable before.”

Prosecutors allege Mr Trump took sensitive documents, which belonged to the government, not him, and stored them at his residences in Florida and New Jersey. It further alleges that he failed to return the documents when repeatedly asked, showed some of them to people who lacked the necessary security clearances, defied a subpoena, and lied to investigators, falsely claiming he had in fact returned all the relevant material.

An FBI raid of his Florida property, Mar-a-Lago, late last year allegedly uncovered multiple boxes full of such material, including information about US nuclear capabilities.

“The classified documents Trump stored in his boxes included information regarding defence and weapons capabilities of both the United States and foreign countries; US nuclear programs; potential vulnerabilities of the US and its allies to military attack; and plans for possible retaliation in response to a foreign attack,” the indictment against him reads.

“The unauthorised disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the US military, and human sources and the continued viability of sensitive intelligence collection methods.”

“Many people have asked me why I had these boxes,” Mr Trump said after his arraignment.

“The answer, in addition to having every right under the Presidential Records Act, is that these boxes were containing all types of personal belongings. Shirts and shoes and everything.

“They were full of newspapers, press clippings, thousands of pictures, thousands and thousands of White House pictures. The White House photographers, they took so many pictures, and we saved all of them, and they were in those boxes. Clothing, memorabilia and much, much more.”

Mr Trump claimed he wasn’t aware of everything inside the boxes because he led a “busy, busy life” and hadn’t had time to sort through them.

Speaking to MSNBC, former federal prosecutor Andrew Weissmann suggested Mr Trump had undermined his own defence.

“Those are admissions. Part of what he said is just a straight out confession. It’s not a defence. It’s a confession,” said Professor Weissmann.

“He said, ‘I could take these.’ When you are charged with the illegal retention, the illegal possession of the documents, it is not a good idea to say, ‘Hey, you want to know why I took these? Because I could.’ That is not a defence to that charge. That is an admission.”

Former acting US solicitor-general Neal Katyal delivered a similar assessment, saying Mr Trump’s speech made him “feel like I have to scrub my eyeballs and cleanse them”.

“I can’t unsee what I just saw, but it was ludicrous,” he said.

“He’s complaining that the indictment doesn’t cite the Presidential Records Act? I mean, give me a break. The indictment doesn’t cite the Bankruptcy Code of 1978, either. That’s because it has nothing to do with this case.

“These (arguments) may work with Trump’s base but they won’t work in a court of law.”

Mr Trump’s defence team is likely to argue that, as president, he had complete discretion to retain documents from his administration. However, legal experts of the opposing view argue the Presidential Records Act applies to personal records created by the president, such as a diary, not documents generated by government agencies, such as intelligence reports.

Speaking to the ABC’s 7.30 program on Wednesday night, American legal analyst Jill Wine-Banks characterised Mr Trump’s remarks as “a complete misstatement of our laws”.

“I would also go further and say he knows that they are, because number one, his lawyers told him that. Number two, the National Archives told him that. Because he was informed by the Department of Justice that was the case, when they asked nicely for these documents, when they subpoenaed the documents, and ultimately when they had to ask the court for a search warrant to retrieve those documents,” she said.

Mr Trump has claimed he is being persecuted because the current President, Joe Biden, also turned out to have retained documents after his vice presidency, and because Mr Trump’s own vice president Mike Pence did the same.

“The thing that distinguishes this, and really any case that is prosecuted under these kinds of laws, is not just an accidental removal and retention. It’s that, when it’s called to your attention, you say, ‘I’m not giving them back,’” said Ms Wine-Banks.

“And signing a certificate that says, ‘I made a thorough search, and there’s nothing else.’ Those elevate this to a prosecutable offence.

“(The Biden example) is a bad thing, but as soon as it was discovered he said, ‘Come and take them. I don’t want them.’ Nobody lied in that case, and they co-operated fully.

“Now, Donald Trump has (allegedly) lied, saying, ‘I was co-operating.’ That is baloney. He said, ‘I had two years to decide what to give back.’ No you didn’t! You had no time to take them to begin with. So that’s why it’s very, very different.”