#689 Musings Beyond the Bunker (Wednesday June 21)
Good morning,
Continuing the discussion of the Mar-a-Lago documents case…
PROSECUTING A PRESIDENT
There has been a drumbeat of people arguing that one should “never prosecute the president.” Some claim that the only way to prosecute a president is through impeachment. Except that’s a political proceeding and not a legal one. The vote was against removal because the Republicans decided that it was politically problematic. It most certainly is possible to indict and try a former president. That very threat caused President Ford to pardon President Nixon.
Not only do I believe it isn’t inappropriate to prosecute Mr. Trump, I actually believe the opposite is true. Much has changed since talk of his wrondoings initially materialized. In this case, it isn’t as if he had many opportunities to comply or that he ever tried to comply with requests regarding the documents. It isn’t as if there is any contrition. It isn’t as if these weren’t secret government documents. He continues to flaunt the law because of who he is. He believes he is above the law, as he believed the Justice Department were his lawyers when he was president.
No one is above the law. He’s had multiple opportunities to deliver the documents. In cases where people inadvertently left office with documents, as have Messrs. Biden and Pence when they found government documents in their possession, they were quick to advise the authorities and deliver the documents back. No one has claimed the documents were brazenly and sloppily stored and shared with others. There is a line and he has repeatedly crossed it. There is a point when a person so clearly guilty of flaunting the law must be prosecuted. And at least one Grand Jury (so far) agrees.
There is a claim that “no one was harmed.” People point out that he didn’t take bribes or sell the information to an enemy. The fact that a bribe wasn’t taken (although, query, whether all the special deals, the Jared Kushner Saudi contract, the hotels at which diplomats were expected to stay, etc., etc. are bribes) or that a secret doesn’t appear to have been shared with an enemy is not an argument against protecting government documents. “Hey, officer, I didn’t kill anyone” doesn’t get someone off the hook for preparing for a crime, attempting a crime, or amassing illegal weaponry that might be used in a crime. He violated the law.
None of us knows the nature or extent of the information in these files. That said, some of the chatter is that there is considerable intelligence information that, if disclosed, could put American lives and the lives of American assets at great risk. Read the National Review article for more on this (below).
There is an argument that, even if he wrongfully retained documents (ignoring the court orders and subpoenas), he’s an ex-president and we should just look the other way. But it wasn’t just Trump who had access…he didn’t protect the documents and he apparently shared them with others.
There is an argument that the Presidential Records Act allows presidents certain access. That’s true, but that Act requires following certain procedures. Again, Trump does not feel these procedures apply to him.
There is a claim that, as president, he should not be indicted for something as simple as this. He and his pals accused Hillary of far less and demanded they “lock her up.” I suppose Secretary of State is fair game, but not president.
THE BIG ARGUMENT ABOUT POLITICALLY-MOTIVATED PROSECUTIONS
There is a legitimate argument that we wouldn’t want to encourage further prosecutions of presidents (or, for that matter, other senior national leaders). Fair enough. But no one is saying this didn’t happen. They’re just saying it’s no big deal. Some would say that Bill Clinton lying about a sexual relationship isn’t that big of a deal, but a Republican Congress seemed to think it was a big deal—and government secrets were not at risk…
I acknowledge the risk of going after someone so prominent. That said, he crossed that line. If this were Clinton (either of them) or some other prominent Democrat, the law would and should be followed. We are a nation of laws. The fact that this opens a pandora’s box because the Republicans will go after Democrats for political gain (for good reason or not) is hardly an argument for letting Trump off the hook.
The Republicans clucking about how horrible it is to go after a former president are making two absurd arguments: 1. It’s not so bad and 2. If you do this, we’ll have no choice but to follow suit (regardless of the facts). The first is silly, in that the facts are clear and the facts and the matters at risk are both significant. The second is silly because they’re pretty much acknowledging that they are trying to extort an agreement not to prosecute or they will go medieval on their perceived enemies—“I’ll show you and go seriously crazy in the future, unless I get what I want.”
This is a defining moment for patriotic Republicans. What they should be saying is “Let the law go its course. We don’t like his behavior. We’ll wait and see what a jury of his peers decides.” Then nominate Tim Scott, Nikki Haley, John Sununu (even though not currently a candidate), or Chris Christy. Then we can have an election about ideas and not people.
COME ON, GLENN, STATE THE OTHER SIDE
I have received several emails from Republicans, asking that I try to argue the “Trump side” of the argument about the documents case. But there really isn’t a Trump side as to facts in the classified documents case. He’s guilty as sin—lies to his lawyers, multiple claims of ownership, declassification, etc. and then a taped conversation that confirms his lies and his intent. I think what Trump’s supporters mean that there is a side against pursuing him for wrongdoing. So I decided to consult some conservative sources. The first is the Wall Street Journal. They say prosecuting him will lead to further conflict and retribution back-and-forth.
The Wall Street Journal Editorial Board made their case last week: https://www.wsj.com/articles/donald-trump-indictment-classified-documents-jack-smith-mar-a-lago-biden-justice-department-81591082?mod=hp_opin_pos_1
But even the Journal had an observation about Trump’s self-destructive brazen disregard for complying with the law:
“As usual, Mr. Trump is his own worst enemy. “This would have gone nowhere,” former Attorney General Bill Barr told CBS recently, “had the President just returned the documents. But he jerked them around for a year and a half.”
THE NATIONAL REVIEW
Then the National Review, a well-regarded long-standing national conservative mouthpiece, weighed, throwing in the towel:
“Just as paranoiacs sometimes have enemies, people obsessively pursued for alleged violations of the law by their political opponents sometimes commit criminal offenses.
… it is impossible to read the indictment against Trump in the Mar-a-Lago documents case and not be appalled at the way he handled classified documents as an ex-president, and responded to the attempt by federal authorities to reclaim them.
…These documents, according to the indictment from special counsel Jack Smith filed in the U.S. District Court of the Southern District of Florida, included ‘information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack.’
Once Trump was no longer president, he had no right to these materials. He stored them recklessly — not in a secured space that had been approved to handle classified documents, but, farcically, in places including his bedroom, a bathroom, and a ballroom. This was within his Mar-a-Lago Club that has hosted events for tens of thousands of people within the roughly year and a half that the documents were in his possession.
Trump brushed off months of demands from the National Archives and Records Administration to return the missing records before relenting in January 2022, but only providing a portion of what was in his possession…After a grand-jury subpoena demanded all classified documents, Trump’s lawyers then turned over 38 more documents marked classified. But when the FBI carried out a controversial search warrant later that summer and seized more boxes, they found 102 additional documents with classified markings.
The indictment offers evidence that Trump misled investigators about his possession of the documents and took actions to conceal them. But most damning is the transcript of a conversation during which Trump showed one of the documents to a reporter. Speaking of a theoretical attack plan, Trump produced a document and said, “It is like, highly confidential.” He also said, “See as president I could have declassified it” but admitted, “Now I can’t, you know, but this is still a secret.”
The audio of this conversation makes it a lot more difficult for Trump to chalk everything up to an innocent case of some classified documents getting mixed up with other personal items from his presidency. It also directly contradicts some of the laughable public defenses that were made by Trump and his team last summer, including the idea that there was a “standing order” that whatever documents he brought to Mar-a-Lago to work on were automatically declassified. It’s clear from the conversation that he not only knew he was in possession of secret documents that were never declassified, but knowingly shared them with people who lacked the security clearance to see them.
Equally damning, particularly for someone who was and would like again to be the nation’s chief executive, responsible for the enforcement of the laws, is the evidence that Trump not only deceived the investigators and the grand jury, but his own lawyers — knowing and intending that they would consequently obstruct the investigation…
We understand why many conservatives are unwilling to view the charges against Trump in a vacuum given that the Justice Department let Hillary Clinton off the hook for her reckless handling of government secrets…but it doesn’t change the fact the country wouldn’t be in this uncharted territory if Trump hadn’t taken documents he had no right to, and simply complied when asked to give them back.”
When you are nominally a conservative and are losing support from The National Review, you probably should take heed. As the quotation goes, “Now is the time for all good men to come to the aid of their party.” Where are the Republican leaders? It’s time.
Have a great day,
Glenn