Trump’s indictment has him trapped, but not if he can get back in the White House
Dead to Rights
“As president, I could have declassified it. Now I can’t,” Donald Trump told a writer and publisher as he illegally shared a stolen classified document with them. The partial transcript of that conversation in the 37-count indictment, unsealed on June 9, provided clear evidence that Trump knowingly broke the law — contrary to his repeated false claims of innocence (“I did nothing wrong”) and persecution (“yet another witch hunt”).
The indictment was so strong — Trump’s former attorney general, Bill Barr, called it “very detailed” and “very, very damning” — that Trump’s only option may be fighting it politically, potentially leading to more violence, threatening American democracy. Indeed, the day Trump was arrested and arraigned, House Republicans held a mock “field hearing” taking testimony from convicted Jan. 6 insurrectionists, casting them as victims of government tyranny.
Other transcript snippets in the indictment showed Trump lying to — and hiding stolen documents from — his own lawyers, documents which “included information regarding defense and weapons capabilities of both the United States and foreign countries; U.S. nuclear programs; potential vulnerabilities of the U.S. and its allies to military attack; and plans for possible retaliation in response to a foreign attack,” according to the indictment. He’s charged with “unauthorized possession of, access to, and control over” 31 such “documents relating to the national defense,” out of 102 that he failed to turn over before the FBI searched Mar-a-Lago.
“It’s a very detailed indictment. And it’s very, very damning,” Barr told Fox News. “This idea of presenting Trump as a victim here, a victim of a witch hunt is ridiculous.”
The overwhelming, transparent evidence of Trump’s guilt contained in the indictment has had a cascading effect, generating ever more convoluted and contradictory efforts at denial, displacement, distraction and alternate world-building, while two recent YouGov polls found a profound disconnect from reality among self-identified Republicans: 53% falsely believed Trump had cooperated in returning the documents (vs. 15% accurately said he had not), while 54% believed it would not be a national security threat to “have documents regarding U.S. nuclear systems or military plans in his home.”
Trump’s Defense Secretary Mark Esper set things straight on CNN. “Clearly it was illegal, unauthorized and dangerous,” for Trump to hold onto the documents, Esper said.”No one is above the law.”
While Trump cannot be forced to testify against himself at trial, the taped evidence of a crime in progress can be used, and because of it, Trump stands almost no chance of escaping a guilty verdict if he goes to trial on the stolen documents case. “He doesn’t have a legal leg to stand on. And so all he can do is
try to delay,” said Harvard Law School Professor Lawrence Tribe.
Which is why Trump (along with his supporters) is focused so intensely on mounting bogus rhetorical arguments as a political defense, in hopes of preventing his trial from ever occurring — ideally, for him, by re-winning the presidency and ordering the case to be dismissed, then using the government to go after his enemies, just as he pretends they’re going after him.
Trump’s most basic argument is that he’s being politically targeted, accusing others of his own conduct, his instinctual go-to move. “He was always telling me that we need to use the FBI and IRS to go after people — it was constant and obsessive and is just what he’s claiming is being done to him now,” Trump’s second White House chief of staff, John F. Kelly, told the New York Times in March.
Trump continued in that vein, after the indictment.
“I will appoint a real special prosecutor to go after the most corrupt president in the history of America, Joe Biden, and go after the Biden crime family,” Trump said in a speech at his New Jersey golf club, also projecting his own family corruption onto Biden. (Trump’s family evaded half a billion dollars in inheritance and gift taxes, according to a 2018 New York Times investigation, and faces a $350 million civil fraud suit in New York State.)
Trump’s earlier attempt to fabricate evidence for the Biden corruption fantasy was the basis for his first impeachment, when he illegally withheld military aid in an attempt to force Ukrainian President Volodymyr Zelenskyy to open a bogus investigation into Biden’s son.
Trump’s threat to prosecute Biden for unspecified crimes also echoed his 2016 campaign theme to jail Hillary Clinton. But there’s nothing vague or imaginary about charges against him, nor were they brought by Biden or his administration.
Jack Smith, the special counsel investigating him, is a highly-respected career justice department lawyer. The indictment was charged by a grand jury composed of ordinary citizens. And the investigation began with a referral from the National Archives, which is about as political as the National Park Service. The Biden administration itself was only involved in Smith’s appointment, and in ensuring that he didn’t violate
Justice Department standards.
Nor are the charges against Trump remotely similar to anything else he cites — whether it be Hillary Clinton’s emails, which were thoroughly investigated, Joe Biden’s classified documents, which were immediately returned when discovered, or Bill Clinton’s interview tapes he kept in a sock drawer, which a court rightly ruled were personal, not presidential records.
The Presidential Records Act
Trump is also wrong about the Presidential Records Act in two ways: It does not say that presidential records are his to keep. It says the opposite. His references to Richard Nixon getting $18 million for his records are irrelevant: That incident was the impetus for passing the act. He’s also wrong that it has any relevance to his case. It’s a civil statute. He’s charged with criminal violations that have nothing to do with it. The documents involved aren’t even presidential records — they are classified agency records.
In short, every argument Trump’s made in public is bullshit. None would hold up in court.
But Trump’s flailing attempts to escape justice could prove deeply damaging to our democracy. In the process, he’s further radicalizing the entire Republican Party, turning it squarely against the federal criminal justice system, including the FBI, which has only ever been run by Republicans, and is currently run by a Trump appointee — Christopher Wray.
The tone was set early on by Republicans in the Senate and House judiciary committees — supposedly their party’s leading lights on matters of federal law and its adjudication. Texas Senator Ted Cruz called it “an assault on democracy,” while Arizona Rep. Andy Biggs — who asked Trump for a pardon after Jan. 6 — tweeted, “We have now reached a war phase. Eye for an eye.”
“I, and every American who believes in the rule of law, stand with President Trump against this grave injustice,” House Speaker Kevin McCarthy tweeted after Trump announced the indictment against him. “House Republicans will hold this brazen weaponization of power accountable.”
In fact, investigators were extremely patient and lenient with Trump, and likely would not have charged him with anything, if he’d taken his own lawyer’s advice to cooperate in the fall of 2022, as reported by the Washington
Post. Instead Trump chose to fight. Investigators only sought a search warrant after getting taped evidence that Trump had actively hidden documents, and only charged him for less than a third of the classified documents found in that search.
But conservatives are obsessed with the idea that they’re victims, a key reason they were attracted to Trump in the first place. After four years of Trump trying to weaponize the government to go after his enemies — as Kelly attested to — they were convinced that the government was being weaponized against them. And so, as part of the price McCarthy paid MAGA Republicans to gain his speakership, he created the House Select Subcommittee on the Weaponization of the Federal Government, which was touted as a crusading good government effort in the spirit of the post-Watergate Church Committee.
But the Church Committee was “completely different,” staffer Peter Fenn said on MSNBC. “When they passed the resolution to create the Church Committee in the United States Senate, it was 82 to four,” he said. “When they passed the resolution to create the Jim Jordan ‘weaponization’ committee, it was a party-line vote of 221 to 211. So you had no bipartisanship at all.”
What’s more, Fenn said, “We were designed to follow the facts. We were looking at what happened. We wanted real reform based upon the real abuses that we found. What we’re seeing now is no reform, and basically, false, trumpedup abuses ... This is night and day compared to what we dealt with.”
So we can expect House Republicans to continue backing Trump’s baseless claims. His GOP presidential rivals seem fearful of his base, and have only made minimally critical remarks, except for two former U.S. attorneys: former New Jersey governor Chris Christie and former Arkansas governor Asa Hutchinson. But at 3% and 1% in recent polls, neither seems like much of a threat, unless big donors step in to attack Trump independently and boost their attacks.
But Biden’s much more likely to be hurt by big money than Trump is, particularly through the medium of third party spoilers, as Josh Marshall, founding publisher of Talking Points Memo argued recently. A key difference between 2016 and 2020 was the sharp decrease in third party votes, with anti-Trump voters unifying behind Biden. Trump supporters know that, Marshall argues. Which helps explain Steve Bannon’s encouragement of antivax conspiracist Robert F. Kennedy Jr. to run against Joe Biden. On the big money side, Elon Musk has recently joined forces with a number of conspiracist influencers he supports to boost Kennedy’s profile. Kennedy has the benefit of his father’s name, but has been repudiated by his own family. Naive voters might think he’s to Biden’s left, but his podcast guest list says otherwise, according to a post on anarchistfederation.net saying that “under the guise of promoting a progressive, green agenda, Kennedy [has] given a platform to a slew of conspiracy theorists and bigots,” and providing detailed information on 20 of them.
A more serious threat comes from “No Labels,” which Marshall describes as a “corrupt monstrosity” that “insider sheets in DC persist in labeling … an action on behalf of centrists” but that “is funded by a who’s who of right-wing Republicans.” They could raise $100 million or more. All they need to do is shave three or four percent of votes off Biden in a handful of crucial states and Trump could be back in the White House again, safe from prison, even if Biden gets five or six million more votes.
So, that’s what Trump is counting on — as he always has. A huge assist from folks with deep pockets, while he plays the heroic lonely victim center stage. And everyone else pays the price.