He’d have no real defense against an indictment — but bringing one would also likely rob Democrats of the nominee they’d prefer Biden to face in 2024.
He’d have no real defense against an indictment — but bringing one would also likely rob Democrats of the nominee they’d prefer Biden to face in 2024.
M aybe we should call the latest Mar-a-Lago machinations “Stop the Steal II.”
The first time around, there was a telltale sign that then-president Donald Trump’s stolen-election story line was sheer nonsense — “bullsh**,” as his former attorney general Bill Barr later succinctly put it. We detailed it here, day after day, as November trundled into December 2020, as adult Republicans resigned themselves to the coming Biden presidency, and as Trump’s courtroom losses mounted into the dozens.
The telltale sign was this: the widening chasm between (a) the sensational allegations Trump and his flacks were making publicly and (b) the far more modest claims Trump’s lawyers were willing to make in the four corners of real litigation, where the legal and professional consequences of misleading the court can be ruinous.
This same chasm is now showing up again in the case of the Mar-a-Lago search. Trump is on his social-media soapbox, at rallies, and on prime-time cable talking utter nonsense about declassifying top-secret documents by mental telepathy — after his equally eye-rolling “the FBI planted evidence” blather failed to gain traction. But his lawyers won’t dare repeat these whoppers in court.
Remember Stop the Steal in those manic post-election weeks? In the political arena, to which the public was riveted, came the audacious claims: foreign intrigue, ballot-stuffing, mysterious thumb-drives, sinister algorithms, and so on. In courthouses across the country, though, where just a few of us legal buffs followed along, it became increasingly patent that the Trump camp’s fraud claims were fraudulent. Sometimes they were formally, if quietly, dropped, to the limited extent they’d been posited. When judges offered to overlook standing objections and allow Trump’s lawyers to prove any supposed election theft, the offers were timidly declined.
Once the fraud packaging was stripped away for lack of evidence, the legal challenges failed time and again. As is the case in most any election, the remaining, technical claims of election-law irregularities were plainly insufficient to alter the outcome, even if there was something to them (as there was, for example, in Wisconsin).
Inevitably, though, the legal campaign was cynically brought back into harmony with the political bluster: The lawyers would bravely talk up the fraud again once courts had rejected their claims, or once it was clear — as it was in the Supreme Court — that their lawsuits were too frivolous to be taken seriously. This abetted Trump in convincing his supporters that the courts — framed as the deep state’s judicial division, notwithstanding that they teemed with Trump appointees — had refused to let him prove his supposedly slam-dunk stolen-election case.
In the technical criminal-law sense, this rhetoric did not rise to actionable incitement. If you’ve thus convinced yourself, however, that it was not a proximate cause of the Capitol riot, you’re delusional.
The Stop the Steal hijinks explain why Judge Raymond Dearie is pressing Trump’s lawyers for clear statements about whether they have actual proof that Trump declassified documents and that the FBI planted evidence. This time, Trump’s legal team is not going to get away with quietly abandoning explosive claims in the courtroom and then braying on the courthouse steps that they really have a dynamite case but, you see, the judge won’t let them prove it. This time, the judges are making a record for all to see that the declassification and planted-evidence claims are ridiculous, and that the lawyers know they’re ridiculous.
The fraud hubbub around the 2020 election obscured what should have been the central question: Would a person truly fit to be president put the country through such an ordeal over such flimsy evidence?
Richard Nixon, whom history does not exactly cast in a heroic light, refused to go the Trump route in 1960, even though he had a more compelling case that fraud may have tipped the scales against him. He’d lost the popular vote by under two-tenths of a percentage point, and had razor-thin Illinois, New Jersey, and Texas flipped to him, he’d have won an Electoral College majority. Yet Nixon, for all his flaws, was a patriot. He thought the country, by then well into the Cold War, could not afford the rupture an election challenge would entail.
Unlike Nixon–Kennedy, Trump–Biden was not a cliffhanger. Yes, it was a closer election than expected, mainly thanks to fears (well-founded, it turns out) that Biden would cower to the Democrats’ woke-progressive base. But Trump still got walloped. He tended to run behind Republicans down-ballot. He lost the popular vote by 7 million votes. And he lost the Electoral College to Biden by the same margin (306–232) that he’d risibly described as a “landslide” when it had propelled him into the White House in 2016.
The 2020 election result was not one that an American who puts the country first would have fought; there was no need to drag the country through hell over a fable backed by no proof. The point here is not to relitigate the election — for as we learned, there was really nothing to litigate. It is to ask: What should we expect from someone who wants to wield the awesome powers of the presidency?
With that in mind, let’s suspend disbelief and pretend that, when he was president, Donald Trump really could have declassified documents just by “thinking about it.” Let’s pretend that there’s not actually a Presidential Records Act provision mandating that presidents “adequately document” all “activities, deliberations, decisions, and policies” of their terms in office. Let’s pretend that Trump really did have a standing order — one his senior White House staff seems not to have seen or known about — that any classified documents he removed from the Oval Office to the White House residence were automatically declassified. Let’s take Trump at his word that he “declassified everything.”
The question is: Why would on earth would he have done that?
What good reason could a president have to declassify American defense secrets — hundreds of them, apparently — en masse? One could easily see why in Beijing, Moscow, and Tehran they’d think it was a dandy idea for American national defense, and the methods and sources for gathering intelligence to secure it, to be made vulnerable to disclosure and compromise. But what would be in it for the United States? For the American people? For the office of the presidency?
If Trump did what he says he did, then it would be a bigger scandal than the one we thought we were dealing with: the reckless hoarding of classified documents at an estate-cum-resort-cum-country-club. Fortunately (I guess), there’s no reason to believe that he really did what he says he did — which is why his lawyers are having so much trouble answering Judge Dearie’s questions. But in terms of Trump’s judgment, it’s as if he were saying his “defense” is that he actually committed a different, more serious crime.
And, while we’re on the subject, his defense is not even a defense at all.
Since there would be no rational national-security or political reason to claim one had declassified piles of top-secret intelligence indiscriminately, we must assume that Trump has posited this inanity because he figures it helps his legal position. But it doesn’t.
To prove a violation of the Espionage Act, the government merely has to show that the documents Trump mishandled contained national-defense information. There is no requirement that they be formally classified. Now, the fact that they are classified (or, in Trump’s telling, were classified) is strong evidence that the documents did indeed contain national-defense information. But it is not evidence necessary to prove the government’s case. Documents need not be stamped with classification markings for their mishandling to be actionable under the Espionage Act; ergo, declassifying them would not strip them of their status as national-defense information.
Declassification would be similarly irrelevant to the suspected obstruction crime, of which the magistrate judge who issued the Mar-a-Lago search warrant also found probable cause. That offense appears to involve the concealment of documents from the investigation — specifically the false claim, made by Trump’s representatives on June 3, that the 38 documents they were surrendering to investigators were the only ones on the Mar-a-Lago premises responsive to a grand-jury subpoena issued the preceding month. The grand-jury subpoena at issue did not command the production of documents that necessarily were classified at the time of the search; it commanded the production of documents that physically bore classification markings. Again, even if there were credible evidence that Trump had declassified the documents, that wouldn’t be a defense.
In other words, the declassification claim, beyond signaling recklessness, is just plain stupid.
Here is what most jeopardizes the former president at the moment: When we are asked to ponder the question of whether Trump is likely to be indicted, the answer no longer calls for an assessment of the evidence. The Justice Department undoubtedly figures it has sufficient evidence to indict and convict. At this point, it is a question of prosecutorial discretion — not can the Justice Department prove the case, but rather is there more downside than upside to filing criminal charges?
That is a very unenviable position to be in when you are the arch-nemesis of the party in power, whose rabid base wants you indicted and, if anything, is fulminating precisely because you haven’t been charged already.
On the other side of the discretion ledger, Trump has two things going for him: Hillary Clinton and 2024.
Clinton could similarly have been charged with mishandling national-defense information, destroying government records, and obstruction in 2016. The FBI conceded that her behavior had been recklessly irresponsible. Yet, the Obama–Biden Justice Department let her off the hook. Even Republicans who have no use for Trump are irate over the double standard: Trump may bring it on himself, but he is hounded while Clinton is insulated; the Capitol rioters may be numbskulls, but the earth is scorched to nail every last one, even those who did nothing more than parade through the rotunda, while the Biden Justice Department coddles radical left-wing lawyers who firebombed a police car and a left-wing rioter who lethally torched a building.
Biden wants to be reelected in 2024. Democrats want to minimize the damage they suffer this November and then bounce back in 2024. That is why they are pushing Trump to center stage now, even though he is not on the midterm ballot. That is why they want him on the ballot in 2024. Even with nagging inflation, a looming recession, a border crisis, an energy sector strangled by climate zealots, the schools converted to laboratories of cultural Marxism, and children besieged by gender radicalism, Democrats surge when Trump is relevant. With Trump in the spotlight, the full bloom of their disastrous agenda fades to the background.
If Trump were placed under indictment, Republicans, despite their default “how can we screw this up” mode, would probably — probably — think twice about nominating him in 2024. That’s the Biden administration’s best rationale for not indicting him: If Trump is at liberty, there’s a good chance that he’ll win the Republican nomination, and no chance that he’ll win the general election.
Unfortunately, this gives Trump a strong incentive to run. He is only of political use to Democrats as a contender. The moment that he signals he’s decided not to run — or Republicans signal that they’d rather try to win than reboard the Trump Train — is the moment when the Biden administration gives Democrats the Trump indictment they crave.