More thoughts on the Trump indictment
Debunking Trump's defenders
After reading more coverage of the federal Trump indictment and listening to the points of view of both sides, it seemed like there was enough material to fill another post, so here we go.
There are a few new legal theories floating around that need to be addressed. One of these was propagated by the Wall Street Journal’s editorial staff in an op-ed that cited the Presidential Records Act.
“It’s striking,” the Journal opines, “and legally notable, that the indictment never mentions the Presidential Records Act (PRA) that allows a President access to documents, both classified and unclassified, once he leaves office. It allows for good-faith negotiation with the National Archives. Yet the indictment assumes that Mr. Trump had no right to take any classified documents.”
But the unsealed indictment (and I’ll point out that the editorial probably went to press before the indictment was unsealed) scuttles each of these arguments. But first, it’s important to note that the Presidential Records Act of 1978 explicitly states, “The United States shall reserve and retain complete ownership, possession, and control of Presidential records.” The ownership question of the Trump files is established by statute, as are the questions of possession and control.
The former president, the Journal says, is allowed access, and that is true, but the law further states, “Upon the conclusion of a President's term of office, or if a President serves consecutive terms upon the conclusion of the last term, the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.”
The former president is not legally entitled to retain custody of the documents after his presidency. If you don’t believe me, read the law for yourself. I’ve linked it above and I’ll link it here as well (https://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter22&edition=prelim). It is not a difficult read.
The Journal notes that the law “allows for good-faith negotiation with the National Archives.” Again, that’s true, but to the extent that Trump negotiated with NARA, he did not do so in good faith. Per the indictment, he even lied to his own attorneys and concealed boxes of documents from them.
It was Trump’s deceit with his attorneys that Alan Dershowitz alluded to in an interview with Fox News. Dershowitz complained that the DOJ was out to get Donald Trump, even to the point of piercing his attorney-client privilege. This was detailed by reports back in March which revealed that Evan Corcoran, now known as Attorney 1, was compelled to testify by a federal judge.
There is a crime-fraud exception to attorney-client privilege in which attorney-client communications about ongoing or future crimes are not shielded from inquiry. When Donald Trump allegedly involved his attorneys in trying to avoid complying with the grand jury subpoena, he ran afoul of this exception. Again, that is not a case of persecuting Trump. That law applies to everyone.
Another novel legal theory involves the Clintons. This is not the Hillary investigation, but a case relating to a lawsuit in which Judicial Watch sought to obtain cassette recordings of Bill Clinton, which were secreted in his sock drawer while in office. Per Reuters, the 79 recordings were interviews conducted by historian Taylor Branch.
The rub here is that Clinton designated the recordings as personal rather than official presidential records. Judicial Watch sued to have the recordings redesignated as official rather than personal and ultimately lost.
In 2012, a US district judge ruled, “The [Presidential Records Act] does not confer any mandatory or even discretional authority on the archivist. Under the statute, this responsibility is left solely to the president.”
Some Trump defenders are encouraged by this, but the obvious problem is that the Trump files contained classified material that cannot be considered personal records. In fact, the PRA defines the term “personal records” (as you may recall from my piece on gun control back in May, when looking at a law or contract, always check the definitions):
The term "personal records" means all documentary materials, or any reasonably segregable portion therof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes—
(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;
(B) materials relating to private political associations, and having no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; and
(C) materials relating exclusively to the President's own election to the office of the Presidency; and materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.
So obviously, anyone who has skimmed the PRA should understand that the government documents in the Trump files are publicly owned and do not fit the definition of “personal records.” The problem is that people making this claim don’t care. They just want a way to claim “TOTAL EXONERATION” for The Former Guy.
And then we come to the other Clinton. Another common defense for Trump is to claim that Hillary, Biden, and Sandy Berger got to mishandle classified documents so why is there a two-tiered justice system in which they get to skate while Trump gets prosecuted?
Let’s look at those one at a time. Sandy Berger was a National Security Advisor for Bill Clinton who stole classified documents from the National Archives prior to testifying before the September 11 Commission.
But Berger didn’t get away with it. Although he originally claimed that the theft was accidental, he eventually admitted to stealing and destroying four documents that were duplicated elsewhere. Berger pled guilty to a misdemeanor and was fined $50,000 and placed on probation for two years. He also lost his security clearance and law license.
Joe Biden’s case is similar to that of Mike Pence, who is not normally mentioned by Trump’s Republican defenders. In both cases, the former politicians found classified documents in boxes of personal effects on their private property.
It’s important to note that Biden is the subject of his own special counsel investigation by Robert Hur so it’s premature to say that Biden got away with anything. On the other hand, both Biden and Pence did the right thing when they discovered classified documents. Both called in the FBI to conduct searches and cooperated fully. Contrast that with Donald Trump’s stonewalling, lies, and subterfuge as detailed in the indictment.
To me, Hillary is the best argument that Trump’s defenders have. I’ve always believed that Hillary should have been prosecuted for her handling of classified information with her private server and email system.
On the other hand, based on what I’ve seen from the Republican propaganda machine over the past six years, I have a lot of doubt now that what I thought was true about Hillary was rooted in fact. I discovered several years ago that the Hillary-sold-out-America’s-uranium scandal was largely fictitious. Remember my other maxim that if it sounds too stupid to be true, it probably is.
So let’s take a quick look back at Hillary’s email scandal. As it turns out, there were quite a few full reports on Hillary and her “homebrew” server, and I can find plenty of references to policies that she violated, but I can’t see where using a private server or email account was illegal at that time. Prior secretaries of state from both parties had used private email accounts and the George W. Bush White House also used a private email server, that one owned by the Republican National Committee.
At that time, what was required by law was that relevant emails be transferred to the National Archives. Did Clinton do that?
Factcheck.org described the process by which the infamous 33,000 emails were deleted from Clinton’s server. Citing the FBI, Factcheck explains that two Clinton attorneys and her chief-of-staff reviewed the emails and separated them into work and personal categories. 30,490 work-related emails were turned over to the State Department and 31,830 personal emails were deleted. The problem for Clinton is that the FBI determined that the emails were deleted after she received a congressional subpoena.
But Clinton apparently did not delete the emails or even order them deleted. This was done by an employee of PRN, a third-party vendor, who told the FBI that “he had an ‘oh shit’ moment and sometime between March 25-31, 2015 deleted the Clinton archive mailbox from the PRN server and used BleachBit to delete the exported .PST files he had created on the server containing Clinton’s e-mails.”
This may sound suspicious, but the FBI apparently determined that the employee was telling the truth since he was never prosecuted for making false statements. The false statement charge is one that the FBI seems to toss around quickly when they feel they’ve been lied to. And while suspicions can be investigated, it takes evidence to prosecute.
In fact, the whole setup to vet the emails seems similar to Trump’s arrangement with his own attorneys to search the trove of boxes at Mar-a-Lago. The big difference seems to be that there is no evidence that Hillary intervened in the process to hide material from her own staffers (or a grand jury or Congress.)
But what about the classified information in the emails? First, there absolutely was classified information sent and received in Clinton’s emails that should not have been transmitted. She probably should have been prosecuted for her negligence in exposing secrets to hackers and foreign intelligence agencies.
Having said that, because Hillary cooperated with the investigation and lacked the intent to mishandle classified information, it probably would have been a case of put-her-on-probation rather than lock-her-up. At most, Hillary would have probably gotten a sentence similar to Sandy Berger or David Petraeus, the disgraced general who was fined $100,000 and given two years of probation for sharing classified information with his paramour.
The whole Hillary email scandal seems to have been much less unlawful than Republican pundits told me it was. I have to agree with former FBI Director Comey, a Republican until 2016, that Hillary was “extremely careless,” but as to laws that were broken, it doesn’t surprise that Republican talkers vastly overstated the case.
There are important distinctions between these cases and the Trump files, however. At least so far, Trump denies any wrongdoing, but the evidence is strong that he willfully lied to the FBI and unlawfully tried to skirt the grand jury subpoena (and as we’ve learned in the past few years, there are two different tiers when it comes to judicial and congressional subpoenas). Trump has allegedly been caught on audio showing what he describes as unclassified documents to unauthorized personnel. There’s no evidence that any of the others did this. Even Petraeus’ lover had a security clearance.
Trump’s case is a difference in kind from the other cases rather than a difference in degree. Trump’s case is more similar to that of Airman 1st Class Jack Teixeira, the Air National Guardsman accused of spying for [checks notes] Minecraft users than to other politicians caught with classified documents. Both Trump and Teixeira knew what they doing and acted to conceal their actions, even though in Trump’s case, the perpetrator was offered a long series of off-ramps to avoid prosecution.
Finally, I’m a bit underwhelmed at the Republicans who are shedding crocodile tears of concern over the divisiveness of prosecuting political figures. None seem to have had any such compunctions about investigating Barack Obama, Hillary Clinton, and Joe Biden and presumably would have happily prosecuted them if they could have found evidence of criminal activity.
As an aside, Trump’s DOJ had an open investigation of the Clintons until the last days of his presidency. The kicker is that they never found anything to prosecute, either for the classified emails or the Clinton Foundation corruption or the [chuckle] string of serial murders attributed to the couple. You’d never know it from listening to the same people who now loudly proclaim Trump’s innocence and persecution though.
I do agree that a trial of Trump would be a bad thing for the country, but I don’t agree that because it is difficult that we shouldn’t do it. In fact, I can’t see how we can not prosecute Trump and then still claim to have a blind justice system.
It has been suggested that President Biden should pardon Trump. I don’t agree. There is no way that Biden can offer a pardon as long as Trump is still running for office and unrepentant about his actions.
I will say again that Trump should admit his mistakes and plead guilty. If he does so, he can probably make a deal for a slap on the wrist, similar to what Hillary would have gotten. But if he chooses to fight the charges, he stands a good chance of dying in jail.
Trump’s attorney (a new one, not the ones he hung out to dry over the search for classified documents) said on Fox News that Trump will not plead guilty. It’s still early though. Cooler heads may yet prevail.
In the meantime, sane Republicans are starting to realize what the indictment means. Bill Barr, Trump’s former attorney general and a one-time yes-man, said also told Fox News that he was “shocked by the degree of sensitivity of these documents and how many there were, frankly.”
“If even half of it is true, then he's toast,” said Barr.
Note: After publication, a Nikki Haley interview popped up in which the candidate called for a “complete overhaul” of the FBI and DOJ while acknowledging that, if the indictment is true, Donald Trump was “incredibly reckless” and put the lives of American military men at risk. Watch it here:
TWEET OF THE DAY: Jesse McLaren wins the internet today with a new ending for “Raiders of the Lost Ark.” Enjoy.
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