After watching Donald Trump's two back-to-back rallies this weekend, one in Nevada and another in Arizona, it's hard to escape the idea that he must want to be prosecuted. It's unimaginable that anyone who is under investigation by the FBI would say the things he said if he didn't. Of course, most observers will simply say that it's the usual Trump hyperbole, meant to convince his followers of his innocence — but he's in the maw of the criminal justice system now, and it doesn't work that way. Trump's running commentary must have the leadership of the Department of Justice asking themselves if there will be still be such a thing as the rule of law if he gets away with it.
We learned a couple of weeks ago that Trump's most competent attorney, Christopher Kise (who he paid $3 million up front, which is highly uncharacteristic) was advising him to shut his mouth and start thinking about ways to negotiate with the DOJ regarding the stolen documents. The Washington Post reported:
Turn down the temperature with the Department of Justice, Kise — a former Florida solicitor general — counseled his famously combative client, people familiar with the deliberations said. Federal authorities had searched Trump's Florida residence and club because they badly wanted to retrieve the classified documents that remained there even after a federal subpoena, Kise argued, according to these people. With that material back in government hands, maybe prosecutors could be persuaded to resolve the whole issue quietly.
Justice Department officials would hear a former president out, even if he'd stolen numerous classified documents, because of the political sensitivity of the case even if an average American caught doing something like that would get the book thrown at them. In fact, federal prosecutors and the FBI have already handled Trump with excessive delicacy, first asking politely for months for him to return the materials, then resorting to a subpoena when they suspected he had lied to them (which would also land a regular citizen behind bars) and finally having to obtain a search warrant to reclaim the government documents he'd taken to Mar-a-Lago. I believe that Donald Trump is literally the only person in America who would be treated with such kid gloves.
Nonetheless, the man who has led countless "Lock her up" chants about Hillary Clinton and told her during a presidential debate that if he became president "you'd be in jail" is now whining like an injured child that he's being unfairly persecuted. He is also admitting to committing crimes.
After complaining that the FBI or the National Archives had planted documents in his stash, claiming that Bill Clinton absconded with White House recordings by putting them in his socks, and bizarrely declaring that George H.W. Bush hid classified information in a Chinese restaurant (and/or bowling alley), he says that what he did was not a crime:
Trump: I had a small number of boxes in storage… There is no crime. They should give me immediately back everything they have taken from me because it’s mine. pic.twitter.com/nSR2MjmAMk
— Acyn (@Acyn) October 10, 2022
It's difficult to know where he came up with these bizarre ideas about former presidents all stealing classified documents and keeping them in random locations (he has also claimed that Clinton stashed some in a used car lot in Arkansas) but that's just fan service for his supporters' consumption. Stealing classified documents is a crime, and people are prosecuted for it all the time. Despite Trump's elaborate lies, no other former president has ever done anything like that.
Trump: Just look at how every other President has been treated when they left office. They’ve been treated beautifully. All they need to do is leave office.. pic.twitter.com/oypZ417OI6
— Acyn (@Acyn) October 10, 2022
No other president has refused to concede that he lost an election, attempted a coup and incited an insurrection and then stolen hundreds of government secrets on his way out the door. He always says there's never been anyone like him, and it's true.
It remains to be seen if the Jan. 6 investigations will lead to criminal charges against Trump. But this document theft is another story. As Just Security's Ryan Goodman, an NYU law professor and former Defense Department special counsel, wrote recently on Twitter, "There is more than ample evidence to indict Trump for the crimes listed in the FBI search warrant. The question will come down to aggravating factors for Garland DOJ to consider." He adds that Trump's "outrageous, open defiance of the law" with his insistence that the documents he took from the White House are his property and must be given back, "must rank high among those factors." Former Russia investigation prosecutor Andrew Weissmann similarly observed:
This is what we call a summation exhibit.
— Andrew Weissmann 🌻 (@AWeissmann_) October 10, 2022
Proof from the defendant’s own mouth. And on video. https://t.co/896a89GJdj
Up until now it was pretty much unthinkable that a former president would be indicted, not only because none of them were ever accused of criminal behavior (at least not since Ulysses S. Grant was cited in Washington for speeding in his horse-drawn carriage) but because democratic societies feel a natural squeamishness about criminalizing political behavior. An escalating cycle of revenge is the likely outcome, and the specter of the defeated opponents of tyrants around the world languishing in prison hangs heavily over any healthy political system. It's crucial to tread carefully in this unexplored terrain.
Allowing Trump to skate will validate his fans' belief that he is a superhero, untouchable and unstoppable. Sending the message that he's above the law only makes his cult following more dangerous.
But this isn't simply about abstract justice and punishing Trump for his evident crimes. His ongoing behavior presents a real threat to the rule of law. He is out there admitting that he did the crime while flagrantly lying about the law and trying to incite his followers into believing that he is being persecuted. He is openly promising pardons to the Jan. 6 insurrectionists and making no secret of his plans to destroy his political enemies if he gets back to the White House. He's encouraging his followers to do everything they can to prevent free and fair elections. The threat is only escalating, not receding.
There can be good reasons for prosecutors to refrain from bringing charges, even where adequate proof exists. But the consequences of letting Donald Trump off the hook again are likely to be extreme. Rather than worrying about whether his supporters will become angry and lash out, authorities should be concerned that allowing Trump to skate will only validate his fans' belief that he is a superhero, untouchable and unstoppable. Sending a clear message that this individual is above the law makes his cult following more dangerous, not less.
In a time when unequal justice is already at the forefront of many Americans' concerns, seeing this man escape accountability again and again is fatally poisoning the culture. From his blithe confession about not paying taxes to his grotesque sexual assaults, corrupt business dealings and massive abuse of power of as president, Trump is demonstrating to the country and to the world that the rich and the powerful are exempt from the law no matter how blatantly they violate it. If Donald Trump gets away with stealing national security secrets, I'm not sure this country can recover.
