Could Trump Talk Himself into an Indictment?

How the former president may be strengthening the hand of DOJ officials who would like to prosecute him

A llow me some speculation here.

I have never believed that the Biden Justice Department wanted to charge former president Trump with criminal offenses over his retention of records from his presidency. There are many reasons for this, but significantly, the difficulty of proving a crime at trial is not one of them. Proving illegality on the facts as we understand them would be a lay-up.

That is why Trump could easily talk himself into being charged if he’s not careful. The fact that this is a case that probably should not be brought does not mean it would be a hard case for the Justice Department to win — in a jury trial in deep blue, deeply anti-Trump Washington, D.C.

There are legal reasons not to bring charges, but they are defenses of law, not of fact. That is, they are based on legal principles that courts and the Justice Department itself might – but also might not — find persuasive.

No former president of the United States has ever been charged with a federal crime. The Constitution does not bar such a prosecution, but the tradition against it is prudent. The presumption this creates against such an indictment should be overcome only for a gravely serious offense.

Retaining presidential records should not meet that high bar. For nearly two centuries, presidents were thought to own these materials. To be sure, post-Watergate legislation, the Presidential Records Act (PRA), has made clear for a half-century that such records are government property. Trump’s reported rationalization that they are his is characteristically petulant.

But we are not talking about the crime of the century here. The PRA was not enacted as a criminal statute. Although other statutes now criminalize illegal government-records retention, there is a good argument that Congress did not envision former presidents being prosecuted for transgressing the PRA. In any event, I sense that what the government really wanted here was to get the records back, especially any highly classified ones. It has now accomplished that. There would not be much more upside in prosecuting Trump over this, particularly weighed against the downside.

The other legal consideration is equal justice under the law. Hillary Clinton unlawfully retained and destroyed thousands of government records. The Obama/Biden Justice Department never searched her home. Moreover, the DOJ made ridiculously accommodating arrangements with her lawyers about what evidence the FBI would be permitted to review, distorted the plain language of statutes in order to rationalize not indicting her for mishandling classified information, and turned a complete blind eye to her conversion and destruction of non-classified government records.

With that as a recent and glaring precedent — a precedent created when Clinton was poised to seek the presidency, just as Trump is today — Trump should not be indicted. Charging him would amount to exactly the same unjustifiably selective prosecution that the Obama/Biden Justice Department claimed prosecuting Clinton would have been.

Then there are the purely political considerations.

The Biden Justice Department should resist being seen as a political weapon. Of course, whenever a Justice Department under one party investigates figures from the opposition party, the claim of partisan animus is sure to be made. But the specter of politicized prosecution is magnified when the target of the prosecution is a likely opponent of the incumbent president in the next election.

Unlike some commentators, I do not believe this situation creates a conflict of interest that necessarily triggers appointment of a special counsel — again, it is just a more intense iteration of a recurring and often unavoidable issue in politically fraught cases. It would be prudent, however, for the Justice Department to avoid being seen as a political tool in the absence of a truly egregious offense.

Many believe that this would be a risk worth running if the DOJ could make a January 6 case against Trump — for reasons I’ve explained, I would agree with that only if there were strong evidence Trump was willfully complicit in the violence, and I do not believe there is such evidence. But records-retention offenses are not serious enough for the Justice Department to immolate itself over: By charging Trump at this point, the DOJ would probably help his political standing — it would appear as if Democrats were looking for any excuse to persecute and derail their arch political nemesis because they fear they can’t beat him fair and square in the 2024 election.

So what could change these calculations? Trump could change them.

Inside the DOJ, I bet officials are steamed because they believe they’ve acted reasonably, yet Trump and his apologists are accusing prosecutors and the FBI of corruption. The DOJ has not been helped by an erratic Attorney General Merrick Garland, who, despite making a highly unusual public statement about a pending investigation, neither addressed the claims that Trump was making publicly nor shed light on the matters of most importance to the public: Why do a search warrant? Why now? And wasn’t there some less-intrusive way of handling this dispute?

Rest assured, though, that this is how Main Justice and the FBI see things: Trump had no right to retain these records; the retention of highly classified intelligence in an insufficiently secure setting was both illegal and irresponsible; the government had been trying to get him to return this stuff for over a year; there was no reason to believe he would return all the records voluntarily; there was apparently (according to the search warrant) reason to believe Trump would destroy (or already had destroyed) records; and therefore, if the government did not take them forcibly by warrant, the records would never have been returned and preserved as the law mandates.

Moreover, Justice Department officials undoubtedly believe that Trump, despite his complaining, is being given favorable treatment. In the vast majority of investigations in which the FBI and the DOJ go to the trouble of convincing a judge to issue a search warrant because there is probable cause to believe crimes — here, three federal felonies — have been committed, charges quickly follow. What’s more, if the government gets a warrant on probable cause that evidence of a crime will be found in the search, and then that evidence is in fact found in the search, that usually cinches things: The suspect gets indicted.

Here, that hasn’t happened. The Justice Department hasn’t charged Trump even though it (a) convinced a judge that the former president probably committed crimes and (b) then apparently found the inculpatory evidence it predicted would be in his home. The DOJ has cited a statutory crime in the warrant, Section 2071, which seems to make such a case a slam-dunk, regardless of whether the government records in question are classified. And while, as to the few classified documents involved, Trump’s defense that he declassified the documents cannot be dismissed out of hand (as I explained here), the court might disagree. That is, assuming Trump failed to create any written record that he’d declassified the documents, a trial judge might well find that either (a) they are still deemed classified as a matter of law, or (b) it is up to the jury to decide whether the documents are still classified.

This is all to say: I am betting the prosecutors involved in the matter believe they have a strong case and would convict the former president if they could get him in front of a Washington jury — and maybe any jury.

I was a federal prosecutor for a very long time. I handled cases in which there was great controversy over whether criminal charges were the right way to go even if the evidence of guilt seemed convincing. And when I was a boss, I had to make the decision about whether we should charge in such cases. I can attest to this: A major factor in the exercise of prosecutorial discretion is the public perception of the Justice Department’s conduct.

If a suspect is out publicly claiming that the prosecutors, the FBI, and the government generally are corrupt — e.g., that they planted incriminating evidence, lied to court, illegally seized privileged materials, and so on, there is apt to be strong pushback within the DOJ. I assure you that prosecutors and agents whose honor has been besmirched are certain to be pleading with their supervisors to let them charge the case so they can demonstrate to the public that they carried out their duties appropriately and that it is the suspect who willfully violated the law.

Finally, I observed at the start of this column that Trump’s defenses in this case are mainly legal, not factual. That is, they go to whether the Justice Department should bring the case, not whether the conduct it is able to prove violated the law. Does that remind you of any recent case? If you guessed the Steve Bannon case, you’ve aced the course.

The Justice Department’s decision to charge Bannon was controversial, and he had some colorable (if not necessarily persuasive) legal claims for why the indictment was unwarranted. But when these were rejected by the court, he was essentially left with no factual defense that could sway a jury. Perhaps months from now, he will get a sympathetic hearing from an appeals court, but the Washington jury took about a nanosecond to convict him after two-day trial.

There is a lesson in this. Bannon was very public in his attacks on the January 6 committee, the flouting of whose subpoenas were the basis for the case against him. He was public in his attacks on the Biden Justice Department. He might have tried quiet negotiation and belated cooperation. Instead, he portrayed the government as his corrupt, mortal enemy and tried to make that case in the court of public opinion.

How’d that go?

Trump has not been charged. I really hope he is not, because it would be bad for our deeply divided country, and the continued spotlight on Trump is a distraction from what should be a focus on the Democrats’ ruinous policies. I’m betting that if AG Garland really wanted to prosecute the former president for illegally retaining records, the Justice Department would already have charged him, probably at the same time the FBI executed the search warrant, or shortly afterward.

Trump, however, could talk his way into being charged. Every time he publicly attacks the Justice Department’s integrity in this matter, he is strengthening the hand of DOJ officials who are surely urging the attorney general to green-light an indictment.