A factual chronology shows Trump’s indictment is legally solid.
On May 6, 2021, National Archives and Records lawyers ask Trump’s lawyers for help recovering key missing documents. After Trump says he’ll return his correspondence with North Korean dictator Kim Jong Un, but doesn’t, NARA tells Trump to comply with the Presidential Records Act or NARA will alert the DOJ or Congress. Trump personally goes through documents. In January, 2022, NARA retrieves 15 boxes containing “national defense information.” (700 hundred pages are classified. Many deal with foreign intelligence surveillance.)
Some lower official would already have been booked in jail.
Analysis indicate Trump has held some back.
Trump asks Alex Cannon to tell NARA all requested materials have been returned. Other Trump lawyers warn him not to rely on Trump’s truthfulness to say that.
NARA refers this to the DOJ in February, 2022. A grand jury is impaneled to investigate. Trump insists to his advisors he’s turned over everything.
June 3, a Trump attorney signs a sworn statement that to the best of her knowledge all classified documents have been returned. (She relies on information from the Trump lawyer whose notes and testimony prosecutors have now obtained through the “crime/fraud exception” to the attorney-client privilege.) Subpoenaed Mar-a-Lago security footage confirms that once when DOJ had reached out to Trump, people moved documents from their storage room.
On August 5, a judge, finding probable cause Trump is still withholding documents, approves a search warrant . The search finds more than 100 additional classified documents. Several involve a foreign nation’s nuclear secrets! (U.S. knowledge of a country’s nuclear capabilities would obviously be valuable to that country, or its enemies, and could endanger the U.S.’s information source.) In September more classified documents are found in a Trump storage place. Trump knowingly left classified documents on a ballroom stage and in a bathroom. Trump later claims he declassified the documents in his mind.
There’s abundant evidence Trump lied and suborned perjury to retain documents on some country’s nuclear secrets. That’s not in our national interest, whether his ego or a plan to sell them motivated him.
It’s mortifying to indict an ex-President. It sounds like harassment. But Trump, as his former Attorney-General, William Barr said, forced this to happen. He could have returned the documents. The government, Barr adds, acted with delicacy. Clearly, Merrick Garland didn’t wish to put our democracy through this strain. But what choice had he?
I’m betting these charges survive motions. Most will reach trial.
I’d not bet on conviction. Just one ardent Trumpist sneaking onto the jury could save Trump from conviction. Can the jury-selection process prevent that, while remaining fair to conservatives? Particularly if Trump fan Judge Aileen Cannon stays on the case?
What’s scary is how little difference any of this makes to Trump’s “base.” As Trump said, he could shoot someone on Fifth Avenue and they’d still love him.
Consider jury security, with Trumpists calling for killings to punish the U.S. for indicting Trump. Someone might lie to get on that “neutral” jury? Surely some will threaten to harm jurors’ families if Trump’s convicted. Trump’s associates have intimidated Congressional witnesses. Trump has plenty of money for bribes, and no visible scruples.
Cannon already made such a ridiculous pro-Trump ruling that a conservative appellate panel tossed it contemptuously. She can mess up voir dire, wrongly exclude evidence, ignore valid prosecution objections, and even direct the jury to acquit.
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[The above column appeared this morning, Sunday, 18 June, in the Las Cruces Sun-News and on the newspaper's website, as well as on the KRWG website. A related radio commentary will air during the week both on KTAL-LP (101.5 FM / http://www.lccommunityradio.org/) and on KRWG Radio. ]
[There’s so much more to say about all this, from the silliness of Trump’s “defenses” to the examples of lower officials quickly jailed for much less, and from the extreme nature of Cannon’s previous pro-Trump rulings to the interesting split between Republicans who face the facts and those too timid (or stupid) not to make some effort to defend Trump.]
[Ironically, we got further news on Jack Texeira, the National Guardsman who posted classified stuff on the Internet. He likely thought his motives were honorable and good. The following statement reminded me of Trump:
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[Republican columnist Peggy Noonan asks, “What were Mr. Trump’s motives? Why would he refuse to give the documents back, move them around Mar-a-Lago, mislead his own lawyers about their status and content?”
She muses:
Because everything’s his. He is by nature covetous. “My papers” he called them.
Because of vanity: Look at this handwritten letter. Kim Jong Un loves Trump. See who I was? Look at this invasion plan.
Because he wished to have, at hand, cherry-picked documentation he could deploy to undercut assertions by those who worked with him that he ordered them to do wild and reckless things.
My fear is that Mar-a-Lago is a nest of spies. Membership in the private club isn’t fully or deeply vetted; anyone can join who has the money (Mr. Trump reportedly charges a $200,000 initiation fee).
A spy—not a good one, just your basic idiot spy—would know of the documents scattered throughout the property, and of many other things. All our international friends and foes would know. ]
Any Trump claim that he owns the documents runs afoul of the clear language of the Presidential Records Act: “The United States shall reserve and retain complete ownership, possession, and control of Presidential records.” ]
[Noonan’s point about how, practically, anyone could have gained access to these documents is significant. Mar-a-Lago is a country club, golf course, and restaurant, as well as Trump’s present home. People can join. Trump is known to respond to flattery. If you offered to bet me whether I could get close enough to Trump (or bribe a Mar-a-Lago employee for keys) to gain easy access to those documents, I’d take the bet with fair confidence. What of some better con man (or woman) with business or conservative credentials?
Noonan doesn’t get into speculation that Trump himself might sell off some documents. I see no reason to take that for granted, given his record. On balance, all things considered, I guess I come out on the side of thinking he probably wouldn’t do such a thing, largely out of fear. But it’s not laughable, even though ego and garnering backup for pissing contests sound far more likely.
Fortunately, the DOJ need not prove motive. Trump’s apparent conduct here was so very bad, it’s inherently criminal, whatever his motive. (Note that I neither say “his alleged conduct,” which is legally more precise, not “his conduct,” which remains to proven to jurors’ satisfaction at trial, but “his apparent conduct” because some of the evidence is so public that we already know it’s strong, even though we give Trump’s lawyer’s a chance to rebut or undermine it.]
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