In Brief: The Truth About the Trump Indictment
Bill Barr says this time the president is not a victim of a witch hunt. The situation is entirely of his own making.
Bill Barr and Donald Trump have clearly not buried the hatchet. Barr, who served as attorney general under George H.W. Bush and then again under Trump, was thoroughly disillusioned by the latter’s behavior after the 2020 election, torching Trump for it last spring. The jilted feeling is mutual. Though Trump once called Barr “one of the most respected jurists in the country,” Trump eviscerated Barr last spring too, and recently mustered all his charming tact to call Barr a “coward” and a “gutless pig.”
So keep that in mind when reading Barr’s assessment of the latest indictment of Trump.
Barr opens by recounting how he stood with Trump to fight the numerous witch hunts of the Left, while also admitting that “Trump is a deeply flawed, incorrigible man who frequently brings calamity on himself and the country through his dishonesty and self-destructive recklessness.” With that setup, he endeavors to evaluate the “plain facts” about the indictment.
On leaving office, Trump illegally removed from the White House hundreds of some of the most sensitive national defense documents that the country possesses. These include information on the defense capabilities of the U.S. and foreign countries; our country’s nuclear programs; potential vulnerabilities of the U.S. and our allies; and plans for potential retaliation against foreign attack. His handling of these documents in bathrooms and ballrooms at Mar-a-Lago was lawless and exposed the country to intolerable risk. The government had every right — indeed, it had no choice — but to retrieve this material.
The U.S. National Archives and the DOJ acted with restraint in trying to do so, giving Trump every opportunity to resolve the matter discreetly for more than a year. But he stonewalled. He ignored his advisers’ repeated warnings that he was playing with fire. The indictment describes in detail how Trump flouted and deceitfully obstructed a grand jury subpoena for the documents by lying to his lawyer and playing a shell game to hide many of the documents. If true, that conduct was a flagrant crime that cannot be excused.
Why would Trump risk the safety of the American people by hanging on to these documents in the face of the government’s lawful demands for their return? As trophies? Because he thought it was a fun party trick? Because he thought it would be cool to show off to houseguests? Or simply because he thought he could get away with it? Knowing him, it was an act of self-assertion merely to gratify his ego.
We think Barr likely overstates the case to say Trump “risked the safety of the American people,” but it’s hard to argue with the ego part.
Some have tried to frame this affair as a simple custody dispute over documents. Trump’s apologists have conjured up bizarre arguments that the Presidential Records Act [PRA], a statute meant to prohibit former presidents from removing official documents from the White House, should be interpreted as giving Trump carte blanche to remove whatever he wants, even if it is unquestionably an official document.
These justifications are not only farcical, they are beside the point. They ignore the central reason the former president was indicted: his calculated and deceitful obstruction of a grand jury subpoena.
That is indeed the reason for his legal peril. First, Barr argues that Trump shouldn’t have removed the documents in the first place because they were clearly not private documents covered by the PRA.
That’s why Trump’s apologists don’t even attempt to contend that the documents are private. Instead, they advance a ludicrous argument … that an outgoing president has absolute “discretion” to label any document “private,” even if the document indisputably falls outside the statutory definition of “private.”
In other words, they are not merely saying a president has some discretion to determine whether something gray should be treated as black or white. They are saying he has total discretion to label something indisputably black as white — which, if true, would obviously eviscerate the entire Presidential Records Act.
In any case, Barr says, Trump should’ve just cooperated.
All the razzle-dazzle about Trump’s supposed rights under the Presidential Records Act is a sideshow. At its core, this is an obstruction case. Trump would not have been indicted just for taking the documents in the first place. Nor would he have been indicted even if he delayed returning them for a period while arguing about it.
What got Trump criminally charged was his deceit and obstruction in responding to the grand jury subpoena served in May 2022 after he had stymied the government for a year.
That subpoena sought all documents in Trump’s possession that were marked as classified. If Trump truly thought he had a solid basis for keeping those documents, there were easy and obvious ways he could have lawfully raised those arguments at the time. Among other things, he could have taken legal action to quash the subpoena or have a court declare his right to keep them.
He did not do any of that.
The indictment goes into great detail, sometimes with evidence from Trump’s own mouth, that he worked to obstruct the subpoena. Barr calls this “brazen criminal conduct that cannot be justified in any way.”
Yes, there is a double standard, Barr agrees. Hillary Clinton clearly should have been charged for flagrant violation of the law. As politically relevant as that is, however, it does not hold any merit when assessing the simple legal facts of the Trump case, and it won’t fix the problem of two-tiered justice to have both sides get away with lawless behavior.
Finally, even if the position of some Republicans is that “Trump should not face criminal liability,” Barr says that’s no reason to “continue to promote him for the highest office in the land.”
Many loyal Republicans have instinctively rushed to the ramparts to defend Trump. I understand that impulse. But with each new revelation, they look more and more foolish. Remember when news first broke of the FBI search of Mar-a-Lago? The roars of Trump supporters were deafening. “Why didn’t the government simply ask for the documents back?” Well, as it turns out, they did ask, politely, for about a year, and they were jerked around. Trump’s supporters then shifted tack. “Well, why didn’t they use a subpoena first before conducting a search?” Well, as it turns out, they did issue a subpoena, quietly and discreetly, three months before the search, and the search was done only after the government got surveillance video suggesting that, in responding to the subpoena, documents had been illegally withheld. And on and on and on.
Whenever defending Trump is concerned, it is always prudent not to get too far out on a limb until the facts are known. It would be wise to consider that the DOJ has held back a lot of information, and it will be coming out in the weeks ahead. But what we already know about Trump’s behavior is indefensible.
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