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Current Affairs

A Magazine of Politics and Culture

Nobody Can Come Up With A Good Defense of Donald Trump

Even Trump allies are alleging ‘selective prosecution’ rather than defending his actual conduct. The question, as always, is: will it matter?

 If it’s a crime to mishandle classified documents and then try to mislead authorities about your actions, it seems pretty clear that Donald Trump has committed a crime. The newly-released indictment of the ex-president alleges facts that, if proven true in a court of law, show that Trump took classified documents from the White House to Mar-a-Lago, kept them strewn in random locations (including a bathroom and on the stage of a ballroom), and tried to mislead the federal government by covering up the documents to keep them from being found. 

The indictment is so strong, and so damning, that even those who hate the Biden administration and have previously defended the lawfulness of Trump’s conduct are shocked. The National Review, for instance, had to admit that “just as paranoiacs sometimes have enemies, people obsessively pursued for alleged violations of the law by their political opponents sometimes commit criminal offenses,” and commenting on the case said

At many junctures, most recently with Manhattan District Attorney Alvin Bragg’s flimsy charges, we’ve had occasions to point out how Donald Trump’s adversaries have twisted the law in a politically motivated effort to nail the former president. And we certainly do not welcome the precedent of a federal prosecutor, who ultimately reports to the president, indicting that president’s leading rival for reelection. That said, 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.

Well, it’s not impossible, because plenty of Trump’s allies are still defending him. But it’s notable what they’re saying and what they’re not. Most of the angry responses to the indictment focus on the idea that it’s a “witch hunt” or a “selective prosecution,” an attempt to imprison a political opponent.

But what few Trump supporters have been able to offer is any convincing legal argument in Trump’s defense. Even Alan Dershowitz, who had called it “the most dangerous indictment in political history” before it came out, was forced to admit after reading the full thing that parts of it are “powerful” and “damning” and “we’re going to have to hear an explanation from Trump’s lawyers or from Trump as to how he can justify having shown, to somebody who doesn’t have security clearance, allegedly some information about a plan to attack Iran.” The indictment, he said, makes “a stronger case against Mr. Trump than many observers, including me, expected.”

The problem for Trump is that “this charge was brought by a political opponent” and “Hillary Clinton also mishandled classified documents” aren’t actual valid legal defenses. You can’t show up in court facing criminal charges and say “But my neighbor Bob does the same thing and gets away with it all the time because he’s friends with a judge.” That might indeed be proof that we have a “two-tiered” justice system. But the question in a criminal proceeding is: Did the defendant violate the law? Trump doesn’t appear to have a very good response to that, in part because it’s hard to know how anyone can explain away photos of boxes of classified information spilling out all over the floor of Mar-a-Lago. As conservative commentator Erick Erickson concluded, “The problem for Trump — you can “but Hillary” and “but Biden” all you want, but they have Trump on tape admitting he is showing classified documents that have not been declassified and he is showing them to people without proper clearance.”

It’s true. The tape is a disaster for Trump. As Lawfare noted in its comprehensive analysis of the indictment, Trump could have argued (and has) that when he was president, he decided these documents were declassified, even if he didn’t tell anybody. While it sounds silly to say he “declassified them with his mind,” the president does have declassification authority, so he could have simply declassified these documents before he left office. But the indictment blows apart his ability to make that claim, because they’ve got him on tape saying of a “plan of attack” document that “as president I could have declassified it” but “now I can’t.” So even if we think the classification status of a document should be based on the president’s mental state, he clearly thought he hadn’t declassified this material when he had the authority!

Then there’s the cover-up. The indictment claims that Trump not only brushed off the  National Archives and Records Administration when it tried to retrieve the classified documents, but deliberately tricked his own lawyers into giving a false representation to the federal government to conceal what he had in his possession. Even if Hillary Clinton and Joe Biden also mishandled classified information at various points (Biden kept some in his garage next to his Corvette), there is no similar evidence of them trying to mislead the government. 

Lawfare’s analysis suggests that this is no bullshit indictment. These are “unquestionably serious crimes for which others have served significant time in prison.” And there seems to be an awful lot of evidence that Trump committed them. As Ben Shapiro said, “Trump’s alleged behavior, if proved as the indictment claims, is NUTS. Irresponsible, mind-boggling, ridiculous.” 

The lack of a good legal defense might explain why there is so much focus among Trump’s defenders on the “double standard” or the “precedent this sets.” The conservative Wall Street Journal editorial board said that the indictment was “a destructive intervention into the 2024 election” and “in the court of public opinion, the first question will be about two standards of justice,” reciting the facts of Hillary Clinton’s private email server and Joe Biden’s garage stash. On the case that will be tried in a court of law, the Journal had less to say, offering no explanation for Trump’s hiding of the documents and admitting that Trump is “his own worst enemy.” 

So we see people like Lauren Boebert and Matt Gaetz saying things like “The same folks that are feverishly going after Trump have had Hunter Biden’s revolting laptop for years and years… NO ARREST YET!” and “the phony Boxes Hoax indictment is an attempt to distract the American public from the millions of dollars in bribes that the Biden Crime Family received from foreign nationals.” Neither, of course, is an answer to the question: “Did Donald Trump commit the federal crimes he is accused of committing?” Nor is “We live in a banana republic,” which Rep. Troy Nehls tweeted. Senator JD Vance, a Trump supporter, said that “the question of whether Trump should have kept those documents is fundamentally a political question” and “prosecuting a president over his own government’s documents is turning a political issue into a legal one.” But of course, it is very much a legal question, because the handling of national security information is made a legal issue by the Espionage Act that Trump is being prosecuted under. 

Of course, it’s perfectly possible to criticize the Espionage Act. The Intercept’s Ryan Grim notes that there is an argument to be made (as Daniel Ellsberg has done) that the Act’s broad prohibitions on disclosing certain types of information are a violation of the First Amendment. Glenn Greenwald points out that “overclassification” is rife in Washington, and the Espionage Act has a long and shameful history of being used to persecute dissidents, from Eugene Debs and Emma Goldman to Edward Snowden and Chelsea Manning. One can argue that this law should not exist, and that Trump’s offense should not be a matter for the criminal courts. We also do clearly have a double standard. The hammer of the Espionage Act is brought down selectively, but plenty of people leak national security information without being prosecuted, because high officials favor the leaks. So Espionage Act prosecutions can feel highly selective. As a general matter, I am also skeptical of the criminal punishment system, including the use of imprisonment, and I think prosecutions should mostly confine themselves to cases where someone has actually been hurt, or was at serious risk of being hurt. While “plans of attack” and “sensitive military information” sound like they should definitely have been secret, it’s not actually clear what these documents said and what the harm of their being released would have been. I generally believe in openness and transparency in government and worry about keeping too tight of a lid on material about U.S. foreign policy.  

But the trouble for Donald Trump is still that, no matter what I, Daniel Ellsberg, and the ACLU may think of it, the Espionage Act does exist. If Trump makes the argument that the Act is unconstitutional, that would be unexpected, because the indictment is also full of quotes from Trump himself talking about the importance of enforcing rules around classified information. But it would certainly be interesting if he tries to use the case as an opportunity to challenge the classification system broadly. Unfortunately, that still doesn’t do much for him on the obstruction charges, and at the moment it looks like Trump’s main argument is that he was authorized to keep the documents under the Presidential Records Act, which he wasn’t. As the Guardian’s Hugo Lowell summarizes, the indictment really does offer “compelling evidence that could be exceedingly difficult for the former president to overcome and avoid a conviction.”

So if Trump’s legal arguments look thin, and “Joe’s garage” won’t fly as a defense in court, what does this all mean? Well, it’s true that it’s unprecedented. Most if not all presidents are criminals, but they never get prosecuted. Will Donald Trump end up in prison? It’s hard to imagine, since he has a long history of getting away with every act of wrongdoing. But if he doesn’t have a defense to the charges, and charges like these generally lead to prison time, it might actually happen.

The 2024 election is definitely going to be strange, then. Trump’s Republican opponents are now rather stuck. They want to attack the Biden Department of Justice, but in doing so they defend Donald Trump, their formidable opponent. If Republicans defend Trump they help his campaign; if Republicans condemn him, they anger Republican voters who see a witch hunt. While it might be the case that, typically, in an election, an indictment of your primary opponent on federal Espionage Act charges would be good for your campaign, I can’t help but think this actually makes Trump more, not less, likely to win his primary. But do general election voters want to restore a president who is facing actual serious charges on crimes it looks like he committed? I suspect most of them don’t. But one thing I’ve learned in writing about politics since 2016 is that making predictions is a very bad idea, because the world is full of unknowns and crazy, unexpected things happen all the time. What I think we can say for now is that the indictment against Trump is stronger than a lot of people thought it would be, and that even his supporters don’t have much to say in his defense beyond pointing out hypocrisy. That hypocrisy may be real (I’m no defender of Hillary Clinton), but it’s not a defense, and the photos of documents in the Mar-a-Lago bathroom make the cries of “witch hunt” ring somewhat hollow. 

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