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Prosecuting Trump
What would you do if you were Merrick Garland? Would you prosecute Trump? Or would you walk away, concerned about accusations you and the FBI were playing politics?
Step One appears easy, put off any decision until after the midterms. Trump is not a candidate, key issues driving the midterms (inflation, Ukraine, Roe) are not his issues and though Trump is actively stumping for many candidates, initiating any prosecution before the midterms is just too obvious. Nothing else about Mar-a-Lago has had an urgency to it (months passed from the initial voluntary turnover of documents and the forced search) and announcing an indictment now would be a terrible opening move. So if you’re Garland, you have some time.
On the other hand waiting until after the midterms can be dangerous if as expected the Republicans do well and take both the House and the Senate. Even with slim majorities Republicans are expected to initiate their own hearings, into Hunter Biden’s laptop and how the FBI played politics with that ahead of the 2020 election. Holding off an indictment until that is underway risks making your case look like retaliation for their case. That’s a bad look for a Department of Justice which claims it is not playing politics. It would look even worse if the Republicans try and cut you off, opening some sort of hearings into the Mar-a-Lago search prior to an indictment. Nope, if you’re Merrick Garland you are caught between a rock and a hard place.
But there is a bigger question: if you are Garland and you indict Trump, can you win? Candidate Trump is already earning a lot of partisan points claiming he is the victim of banana republic politics, and his indictment ahead of 2024 (it matters zero if he has formally announced or not, he is running of course) will allow him to claim he was right all along. An indictment will allow Trump to fire both barrels, one aimed at Garland and the other at the FBI and these, coupled with the dirty tricks a Republican investigation into the FBI and Russiagate will expose will make Trump look very right. He was the victim of partisan use of justice, and the FBI did try to influence both the 2016 election (with Russiagate) and the 2020 (by deep-sixing Hunter Biden’s laptop claiming falsely it was Russian misinformation) and now is taking a swing at 2024 with the Mar-a-Lago documents. If public opinion moves further to Trump’s side, Merrick Garland through his indictment just reelected Trump to the White House as a sympathy candidate. The spooks call that blowback, and it is a real threat in this instance.
Any action against Trump must preserve what is left of faith in the rule of law applied without fear or favor, or risk civil disenfranchisement if not outright civil unrest. Garland will have to address the most obvious precedent case involving former Secretary of State Hillary Clinton, who maintained an unsecured private email server which processed classified material. Her server held e-mail chains classified at the Top Secret/Special Access Program level which included the names of CIA and NSA employees. The FBI found classified intelligence improperly stored on Clinton’s server “was compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.” Clinton and her team destroyed tens of thousands of emails, potential evidence, as well as physical phones and Blackberries which potentially held evidence. She operated the server out of her home kitchen despite the presence of the Secret Service on property who failed to report it. Her purpose in doing all this appeared to have been avoiding Freedom of Information Act requests during her tenure as SecState, and maintaining control over what records became part of the historical archive post-tenure.
Clinton seems to have violated all three statues Trump was searched under. If the FBI is going to take a similar fact sets and ignore one while aggressively pursuing another, it risks being seen as partial and political. Any further action against Trump and certainly any prosecution of him must address why Hillary was not searched and prosecuted herself. Fair is fair, and after all nobody is above the law.
The other fear holding Garland back would be that of losing the case outright in court. Classified documents are typically dealt with either via administrative penalties (an officer is sent home for a few days without pay) or as part of some much larger espionage case where the documents were removed illegally as part of the subject spying for a foreign country. Rarely is a case brought all the way to court for simple possession. Most of the laws Trump may have broken require some sort of intent to harm the United States. In other words, Trump would have had to have taken the documents not just for ego or his library or as some uber-souveniers but with the specific intent to commit harm against the United States. Garland certainly does not have that.
Other factors which typically play into documents cases are also not in Garland’s favor. Despite not being kept in line with General Services Administration standards, the documents appear to have been locked away securely at Mar-a-Lago, the premises itself guarded by the Secret Service. Trump has already turned over surveillance video of the documents storage location, which presumably does not show foreign agents wandering in and out of frame. It is much harder to prosecute a case when no actual harm was shown done to national security.
Another factor in documents cases involves the content of the documents themselves. The uninformed press has made much of the classification markings, but Garland will need to show the actual content of the docs was damaging to the U.S., and that Trump knew that. Overclassification will play a role, as will the age and importance of the information itself; after all, it is that information which is classified, not the piece of paper itself marked Secret. Garland will know Trump will fight him page by page, meaning much of the classified will be exposed in court and/or the trial will move to classified sessions to shield the information but feed the conspiracy machine. One can hear Trump arguing his right to a public trial being taken away.
Hyperbole aside, the critical question returns to whether or not prosecutors could prove specific intent on Trump’s part for the more serious charges. Proving a state of guilty mind — mens rea — would be the crux of any actual prosecution based on the Mar-a-Lago documents. What was Trump thinking at the time, in other words, did he have specific intent to injure the United States or to obstruct some investigation he would have had to have known about? Without knowing the exact nature of the documents this is a tough prediction but even with the documents on display in front of us proving to a court’s satisfaction what Trump wanted to do by keeping the documents would require coworkers and colleagues to testify to what Trump himself had said at the time, and that is unlikely to happen. It is thus unlikely based on what we know at present that Trump would go to jail for any of this.
Take for example the charges of tax evasion now levied again the Trump Organization (i.e., not Trump personally and not part of the Mar-a-Lago case.) Trump Organization CFO Allen Weisselberg, as part of a plea deal, will testify against the Organization but not Trump himself as to why the Organization paid certain compensation in the form of things like school tuitions, cars, and the like, all outside the tax system. It will be a bad day for the Organization but loyal to the end, Weisselberg will not testify as to his boss’ mens rea. It is equally unclear who would be both competent and willing to do so against President of the United States Trump. Blue Check enthusiasm aside, he won’t go to jail over this.
The final questions are probably the most important: DOJ knows what the law says. If knowing the chances of a serious conviction are slight, why would the Justice Department take the Mar-a-Lago case to court? Then again, if knowing the chances for a serious conviction are slight, why would the FBI execute a high-profile search warrant in the first place? To gather evidence unlikely ever to be used? No one is above the law, but that includes politics not trumping clean jurisprudence as well.
And then what? If Garland successfully navigates the politics, if he proves his case in court, and if he secures some sort of conviction against Trump which withstands the inevitable appeal, then what? Trump’s Mar-a-Lago “crimes” are relatively minor. Could Garland call Trump having to do some sort of community service during the 2024 campaign a win? Pay a fine? It seems petty. It sure seems Trump wins politically big-picture whether he wins or loses at Mar-a-Lago. If you were Merrick Garland, what would you do?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Five Stages of Mar-a-Lago Grief
Another week, another silver bullet missing Donald Trump. The endless roll of waves of crimes, accusations, near-indictments, and just bad words slandered away which we had all endured for the past four years happened again. We went from Trump has classified material under lock and key at Mar-a-Lago to a group of people paying $1800 to fly a banner reading “ha ha ha ha” over the resort to mock a Trump staying 3000 miles away in New York. On cue the regulars on MSNBC and CNN brought out their running dog former CIA and FBI officers to tell us tick tock, the walls are closing in, this time it will stick, Trump is going down, he’ll be in jail before he runs again for office. If we can’t stop him with the electoral system we’ll use the judicial system. This. Is. The. One.
Except it isn’t. The offense itself — some variant of mishandling of official materials — is muddled from the git-go by the former president’s former ability to declassify anything, a power he claimed he already used before he left the White House to magically spay the documents. An Espionage Act prosecution is a non-starter, requiring as it does the showing of intent to harm the United States. It seems the documents, however classified and/or sensitive they are, were securely stored at Mar-a-Lago and the risk of exposure was very minimal. The FBI nonetheless threw the kitchen sink at Benedict Donald with a full-on raid, to enforce the Presidential Records Act, a law that actually has no prescribed penalty associated with it. Given the presumed age of some of the documents and non-impact, it was sort of like not returning a semi-important library book.
The story will drag on a while, buoyed by leaks supposedly telling us politically salacious details about the secret documents (the single handwritten doc stored by Trump will likely take on lore akin to the grassy knoll for Trump conspiracists) but in reality “Mar-a-Lago-gate” is fast on its way to closing, joining Russiagate, Ukrainegate, Stormygate, January6gate, and all the others off to the side of history. It is close enough to being a dead story that it’s worth helping our progressive friends through the five stages of grief — Denial, Anger, Bargaining, Depression, Acceptance — that accompany something once so important passing. RIP.
Denial: Are we really doing this all again? There is no way tRump is not guilty of something. There is no way way the Orange Man can finish his term without jail time. Mueller laid out a roadmap to post-term prosecution. Wait until we see his taxes. January 6 had to have been sedition or treason or truancy. It could not have been sort of a violent but potently nothing, amiright? OK, fine, now that he is no longer protected as president and is a regular citizen again the gloves are off and he is going to jail. There is no way Trump is going to run again unless he campaigns from prison. You gonna ignore (checks notes for name) Cassidy Hutchison? Whatta you mean Georgia still hasn’t filed an indictment for election fraud, it’s been how many years? Wasn’t his grabbing the wheel from the Secret Service driver on J6 enough? What about that we call it J6 now? We were so close with the Emoluments Clause, and then the DC hotel business. The walls have to be closing in. Dig up Ivana, her coffin is probably full of purloined documents! Repeat after me: “I know we’ve said it many times before, but this time…”
Anger: Mueller time should have worked but he wimped out! I paid $29.95 on eBay for a Mueller bobble head doll and you’re telling me the guy had nothing at all, not a pair of twos to play? Sanctimony (“Nobody is above the law, you know”) runs inverse to memory (“But her emails!”) in the poli-grieving process. If you’re gonna take a shot at the king you better not miss. And Garland has been putting in a lot of range time. I Googled “RICO” and per Wikipedia this has to work unless the DOJ is in on it, too.
Bargaining: So Dotard had top secret documents, probably was going to sell them to the Russkies, so he’s guilty under the Espionage Act which carries the maximum penalty of death, like the Rosenberg’s or someone else, this is it, the silver bullet! What the hell is wrong, there were hundreds of peeResident Brown Shirts at the Capitol, can’t you idiots get one of them to flip and accuse Trump? What about the Alfa Bank and the Yota smartphones, the hotel deal, what about the pee tape for gosh sakes! You made us believe there was a pee tape and this whole Trump thing was going to be over before it ever really began. Where is the pee tape, we were promised a pee tape. And a hero, we want a hero and all you gave us was Robert Mueller, Michael Avenatti, Michael Cohen, Adam Schiff, Dr. Fauci (optional), Liz Cheney, and now Merrick “Milquetoast” Garland. Somebody do something to fix all this and we promise never to use the expressions “Period. Full Stop. End of story” or “Let that sink in” or “I’ll just leave this here” or “methinks” again on Twitter.
Depression: Yea, that Joe Biden, what a guy, woo hoo. Yes, I guess we all lost our minds again, this time over what is probably “presidential memorabilia,” stuff that would have ended up anyway in Trump’s presidential library on “indefinite loan from the National Archives” if Trump had just gone through channels like Obama and Bush.
Acceptance: OK, well, Russiagate didn’t work. Trump doing something naughty with the Ukraine didn’t end in an impeachment conviction. Michael Avenatti is in jail. The deal with Stormy Daniels and the other Barbies might have been sleazy but it was not criminal. And his 700 sexual assaults! So, alright, nobody could make a indictment out of all that fuss over security clearances for Don and Eric. The Southern District of New York could not find something to charge Trumpkins with vis-vis property taxes or valuation stuff no one really understood, and the various walls never closed in. Maybe Trump will be forced to release his taxes if he runs again, there’s a bright side, gotta be something in those taxes, right? I mean, who takes the Fifth except guilty people, the Orange Man himself said that when he was talking about Hillary but it applies to him and the Trump crime family.
The family, that’s right, that’s his Achilles Heel! Ivanka had some sort of sweetheart deal with China or something even before Hunter Biden to trademark her fashion things, and Jared sold NYC property too cheaply, and Don Jr., had his hand in some golf course thing I think I remember, in Sweden or maybe Scotland. And didn’t Trump flush secret documents down the White House pooper, that was wrong, right? There is still time for Trump’s accountant to flip and tell us all, got to be some indictable stuff in those books, eh? Or maybe Michael Cohen, he has a another book coming out, that will likely cement his role as Fredo and send tRump to the slammer. I hope his cellmate is ironically named Tiny. And Merrick Garland is not really done with the documents, is he? I mean, he hasn’t indicted Trump for anything over them yet — yet — but it could be just nine dimensional chess with Garland waiting for the exact right moment to bring in something from the Articles of Confederation or the Stamp Act showing Trump is guilty. He’s gotta be guilty of something. Right? We still believe.
Maybe next time.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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