In the public square – the court-of-public opinion – there are two narratives. The first is that Trump is the victim of the politicization and weaponization of law enforcement along partisan lines – and that he is totally innocent of any wrongdoing, much less crimes. The other narrative is that Trump is guilty as hell on all counts – and is subject to the same laws as anyone else. Neither of these extreme positions we see being played out in the press is entirely accurate.
Most Americans believe the prosecutorial gangbang on Trump is politically motivated and the counts in the New York and Florida indictments are overcharged based on prosecutorial abuse. Simultaneously, most Americans believe that Trump has committed crimes and should be held accountable. Two things can be true at the same time.
The guilty as hell argument is based on a dubious false premise that America operates under a consistent and firm rule-of-law. That is a fairytale. We have a foundation of laws – but they are enforced or not enforced by the arbitrary decisions of police, prosecutors, and judges.
Both narratives are public relations campaigns to win political support from We the People. They represent two sides of the evergreen hyperbolic and hypocritical propaganda wars between the political parties and philosophic factions.
We now have a 37-count indictment against Trump brought by Special Council Jack Smith, with an additional indictment against his valet Walt Nauta. While we do not yet know how the various cases will turn out – whether Trump will be found guilty or not — we can objectively evaluate the cases based on merits, laws, and traditions. Each plays a role.
Without doubt, the most complex case is the issue of the White House documents – partly because some of the accusations are founded on untested constitutional issues. Trump has been charged with seven identical crimes regarding possession, according to the indictment – with the same crimes being charged 31 times. Ergo, 37 counts.
Each charge presents a unique set of circumstances in terms of the law and the constitutional prerogatives of a President. Those issues have never before been subjected to a criminal indictment in a court-of-law — or constitutionally determined by the Supreme Court.
So, let us take a look at each of those charges – to which I will offer my own opinion and evaluation. The purpose of my analysis is not to serve as the jury to determine outcomes – whether Trump is guilty or not — but to objectively analyze the arguments on both sides – and the laws that may or may not apply.
- Willful retention of national defense information. This is the charge that was repeated 31 times based on the specific number of such documents in Trump’s possession.
This is obviously very controversial. The debate rages as to whether Trump has the right to possess these documents – and, tangentially, whether he had declassified them. None of that is clear based on laws and the Constitution. Clarifying the issues would take congressional action and Supreme Court decisions – which may be the ultimate result of the court case regardless of the outcome.
On the issue of possessing the documents, the laws are not clear, or they are conflicting – subject to widely differing interpretations by legal and constitutional scholars.
Presidents may take personal documents and items home after leaving office – but some argue that a later Supreme Court decision vis a vis the Presidential Records Act establishes that the President is the sole determinator of what is personal and what is official government business. Former Attorney General William Barr says it would be ridiculous for a President to consider a Defense Department war plan as personal – but that may not be how the Supreme Court left it. Trump’s lawyers can argue that Trump believed he was within his legal rights – ergo, no criminal intent. No criminal intent, no crime.
The issue of declassification wallows in a similar constitutional ambiguity. According to the Constitution, the President is the sole determinator of what gets classified and what get declassified – even if documents were classified by other officials in the Executive Branch. There is no prescribed “process” in the Constitution – just as a President can pardon anyone at any time for any reason. Classification and pardons are not like presidential appointments or treaties that are subject to the “advice and consent” of the Senate.
Both the power to pardon and to declassify have traditional bureaucratic procedures that a President can follow. Yes, there are established procedures – but no, a President is not required to follow them. The Constitutional powers of the President trumps laws or procedural rules established for convenience.
While Trump’s claim that the documents were all declassified by his mental decision – or by the fact that the President removed them from a classified environment – may seem irrational, but there is some constitutional wiggle room in Trump’s contention. Whatever a jury decides in terms of possession and declassification, I suspect the case will be left to the Supreme Court to determine if Trump’s powers as President trump the procedures and the indictment.
If Trump’s lawyers can convince a jury that he was under the impression that he had a legal right to the documents – based on the Presidential Records Act, the subsequent Supreme Court decision, and the wording of the Constitution – they can undermine the prosecution’s “intent” argument. If Trump believed his actions were legal, he would have won on the “intent” issue. No intent to commit a crime, no crime. At least, that is the defense point-pf-view.
That is the legal conundrum regarding the possession and classification of the documents Trump took from the White House. Those are the unanswered questions that will need to be addressed in the trial – and ultimately by the Supreme Court.
The political reality
Apart from the complex technical legal issues, there is a political reality. What if Trump’s possession and declassification was deemed to be legal under current constitutional interpretation? That does not mean that his actions were not reckless and an endangerment to national security and the public interest. Just because a President can pardon even the most heinous federal criminal – a convicted terrorist, for example – does not mean it is a responsible or correct course of action.
The courts can only deal with the constitutionality and legality of Trump’s actions – not the wisdom or the harm that may occur if he was within his rights and powers. The latter is up to the political process. It is up to the judgment of the voters. Even if Trump is exonerated on the possession charge in a court-of-law, it does not mean he should be entrusted with the powers of the presidency again in the future.
What about the other six indictments? These may actually pose a greater problem for Trump than the possession and classification charge. In one form or another, they all relate to an obstruction of justice – to which Trump has no constitutional protection.
False statements and representations: In this count, Trump is accused of having one of his attorneys make a false statement to the FBI in early June regarding the results of the search at Mar-a-Lago.
The next five charges deal with the actions of Trump and Nauta. In a nutshell, they cover withholding documents from investigators and the grand jury and submitting a false certification.
Conspiracy to obstruct justice: Trump and Nauta are accused of conspiring to conceal the documents from the grand jury.
Withholding a document or a record: Trump and Nauta are accused of misleading an attorney by moving and concealing the documents so the grand jury would not see them.
Corruptly concealing a document or record: This is a second swipe at the previous charge. It involves hiding records from the attorney.
Concealing a document in a federal investigation: This is a third concealing charge – this time from the FBI and causing the production of a false certification.
Scheme to conceal: Yet another concealing charge.
Interestingly, the indictment does not refer to the Presidential Records Act or the subsequent Supreme Court decision. It does not accuse Trump of lying to investigators, but merely misleading his attorneys. That is not the case with Nauta.
False statements and representations: In this charge, Smith accuses Nauta of giving false statements to FBI investigators during a voluntary appearance in May.
Make no mistake about it. Trump is facing some very serious charges in this indictment – and there is talk of yet another document-related indictment in New Jersey. And … there is still the indictment for election finance fraud in Washington, an expected Georgia indictment for vote fraud in that state; and the January 6th investigation by Smith. The civil defamation case may be re-opened based on post-verdict public comments Trump made about E. Jean Carroll.
Of course, Democrats and their media allies are reporting with certainty that Trump is guilty of every accusation and charge, but the documents case in Florida may not be the slam dunk that most politicians and pundits seem to think.
In a criminal case, it only takes one juror – and reasonable doubt — to prevent a guilty verdict. With most Americans believing that the prosecutions of Trump are politically motivated – and with this trial being held in Florida – it is not unreasonable to believe that there will not be Trump supporters among the jurors.
Unfortunately, there seems to be one element of Trump’s legal problems – and the political feuding and the resulting public consternation — that we can address with certainty. It will be on the front burner of the national news for the next two years – and counting. This movie is still in the opening credits.
How will Trump manage all his legal problems while running for President? And what happens if Trump is found not guilty? More about that in a future commentary.
So, there ‘tis.