Persecuted Innocent or Serial Offender?

A third of Americans think Democrats are “out to get” Trump. Are they right?

Roughly a third of all Americans think the Democratic Party and its fellow travelers are “out to get” Donald Trump, and have been ever since he became the presumptive Republican nominee in the summer of 2016. Might they actually be right?

The answer may surprise you.

To get there, I’m going to begin this week’s post by asking you to do something very bizarre and difficult and potentially unpleasant, and that is to put yourself into the mindset of a Trump supporter.

Imagine, in this persona, that you have tuned in to MSNBC or CNN—just for shits and grins—and all you see and hear is excited conversation about all the laws Trump broke in taking US government information to Mar-a-Lago, and speculation about him being charged and prosecuted for those actions, and pontification about how terrible he is, and unabashed glee at the prospect that this might be his comeuppance at last. In other words, coverage that sounds very much like what you heard on those channels during the Russiagate inquiry, or his first impeachment over the Ukraine scandal, or the fallout from the January 6th and his second impeachment over that scandal.

Full disclosure: I myself am a steady consumer of that very coverage. (On MSNBC, to be precise; I have little use for CNN.) I find it, for the most part, quite accurate and admirably representative of the sane viewpoint in our ongoing democratic emergency. But I can certainly imagine how a Trump supporter, tuning in, would snort in contempt and feel that Trump’s claims of endless persecution are legit.

And why not? Over and over again we have watched the left set its hair on fire over this or that alleged atrocity, convene various institutional bodies to investigate and condemn him, and deliver simultaneously solemn and hysterical Chicken Little-like speeches about how the sky is falling on democracy, how Trump is evil incarnate, and how we must burn him at the stake. But somehow he never gets punished……..which suggests that, gee, I dunno, maybe he’s innocent.

Is Mar-a-Lago Gate not just more of the same? To MAGA Nation, I have no doubt it looks that way.

But let me offer an alternative possibility, and that is that Donald J. Trump is manifestly criminal in so many ways, and has done so many mind-blowingly terrible things over the past seven years—in fact, over the entire course of his 76 miserable years on the planet—that of course he is going to be mired in scandal after scandal after scandal and subjected to what seem like serial inquisitions. (See also: his history of lawsuits, countersuits, and legal troubles long before he ever ventured into politics.)

Likewise, his almost perfect record of getting away with everything (so far) is less an indicator of lilywhite innocence than still more evidence of his ability to game the system, exploit good faith, lie, cheat, obstruct, and obfuscate, not to mention the dumb luck of being born into the kind of vast wealth and privilege that makes him feel entitled to do so, and provides the nearly bottomless resources for that effort. 

Accepting the risible self-portrait of Trump-as-victim requires a willful blindness, an almost infinite capacity to ignore demonstrable fact, and a tribalism that goes to the marrow. Yes, the left is tribal too, and the hand-rubbing glee of MSNBC pundits (and their viewers) over a fresh scandal that might finally bring Trump down is real and palpable. But, sadly for MAGA Nation, Trump’s foes also have the facts on our side here in the current scandal, just as we did in Russiagate, Ukrainegate, and the Insurrection before it.

So is that third of all Americans who think the left is out to get Trump actually correct? I told you that the answer may surprise you.

But only if you think the answer is “Yes.”

HITTING BEDROCK

If you told me 19 months ago, after Trump incited a violent coup d’état in an attempt to overturn a free and fair election, that he would go on to do something arguably even more outrageously criminal, I would not have believed you. But the one thing I have learned over the course of Trump’s time as a politician, if you can call him that, is that every time we think he has reached rock bottom, he starts to dig.

Once upon a time, I myself had a TS/SCI security clearance, as a lowly company grade military intelligence officer. Like nearly everyone who has gone through that process and who has experience handling classified material, the egregiousness of Trump’s theft of sensitive government documents—don’t call it mere “mishandling”—is almost beyond comprehension.

The granular details of Trump’s offenses on this front have been well-documented, but a brief summary really puts it in perspective:

Trump deliberately and illegally took to Mar-a-Lago hundreds of pages of classified material—"stole,” in the usual vernacular—representing some of the country’s most closely guarded secrets. Far from being disengaged from the process as some of his apologists have claimed, he appears to have been intimately involved in the transfer of that material and its storage in the basement of his golf resort, in the closet in his office, even in his bedroom, places that do not remotely meet the necessary security requirements. For more than a year he fiercely resisted repeated government efforts to recover those materials, including a subpoena. In the New York Times, Maggie Haberman reports that “the former president repeatedly resisted entreaties from his advisers” to comply, with several of them quoting Trump as saying, “It’s not theirs, it’s mine.”

Only in January 2022, nearly a year after Joe Biden assumed the presidency, did Trump finally return 15 boxes of material to the National Archives and Records Administration (NARA), which opened them to find a “mess of disorganized papers lacking any inventory,” “including some items that didn’t even come from Trump’s time in the White House.“ The Washington Post’s Jacqueline Alemany, Josh Dawsey and Jacob Armsdorf write that “highly classified material was mixed in with newspaper clippings and dinner menus,” some of it unfoldered. (Coming soon to a theater near you: The Unfoldering, a film by Jordan Peele.)

One hundred and fifty classified documents were found in those boxes, totaling about 700 pages, including material classified as Top Secret/SCI—Sensitive Compartmented Information and others marked as Special Access Programs, the highest classification possible. That number rose to 300 after the FBI search of August 8. One person familiar with the investigation told the Washington Post that the information is “among the most sensitive secrets we hold,” with others stating that it includes nuclear matters, the identity of US spies abroad, and/or top secret technology.

Trump loyalists have claimed that before he left office he somehow declassified all the sensitive documents later found at Mar-a-Lago, even though there is not a shred of evidence to support that claim. The former Trump White House and Pentagon staffer and all-around cretin Kash Patel has argued that there was some sort of “standing order” that automatically declassified material as soon as it was moved out of a secure area—which is to say, the moment it was mishandled. A neat trick.

But as former FBI assistant director for counterintelligence Frank Figliuzzi writes on MSNBC’s website, “While a president certainly has the authority to declassify certain kinds of information, he must still adhere to established processes. Proper declassification would also be evident by appropriate markings on the affected documents. In other words, there would be a paper trail.”

Ironically, some of the arguments and documents that Team Trump have trotted out to defend him only serve to make very clear that he understood very well what the proper declassification process was. Tellingly, Trump’s lawyers did not argue to NARA that Trump had magically declassified the documents before he left office, suggesting that that defense is bullshit.

Moreover, the crimes for which Trump is under investigation do not even hinge of the material in his possession being classified, and the DOJ cleverly did not predicate its search on those grounds. Figliuzzi:

In fact, all the discussion around whether Trump did or could have declassified the recovered documents could be legally irrelevant. The three criminal offenses cited by prosecutors on the Mar-a-Lago search warrant, for which a federal judge found probable cause to have been committed, do not technically require the presence of classified material.

Another “defense” Team Trump has deployed is the claim is that any unauthorized material found at Mar-a-Lago was there purely by accident, as he had to pack hastily, expecting almost up to the day of Biden’s inauguration that the results of the election would be overturned. (Which I guess qualifies as an insanity defense.)

Likewise, the claim that The Former Guy was ignorant of what was going on is a dog that don’t hunt. Informed sources told the Washington Post that “Trump oversaw the process himself—and did so with great secrecy, declining to show some items even to top aides, who subsequently reported that “they had not been involved with the process and were surprised by the discovery of classified records.”

(FBI) Agents were told that Trump was a pack rat who had been personally overseeing his collection of White House records since even before leaving Washington and had been reluctant to return anything. The FBI became increasingly convinced that the former president continued to hold classified documents in Florida, people familiar with the investigation said.

The mind reels.

A BURIED LEDE

We’ve long known that Trump was beyond cavalier with classified material: viewing satellite photos in front of the Japanese prime minister over dinner at Mar-a-Lago, handing codeword intel to Lavrov and Kislyak on a silver platter right in the Oval Office, insisting on retaining and using his unsecure personal cellphone, to name just three examples.

In 2018, NARA learned that as president Trump was continuing his lifelong habit of tearing up documents and even flushing them down toilets. (That’s not the kind of suspicious behavior a criminal would engage in, is it? No, not at all.) But the Presidential Records Act, passed as a result of Nixon’s attempts to keep or destroy incriminating documents, “requires the White House to preserve all written communication related to a president’s official duties—memos, letters, notes, emails, faxes and other material—and turn it over to the Archives.” Trump had been told this many times while in office, to no appreciable result.

In the words of Kate McKinnon, weknowdis.

But new reportage shows heretofore unheard of breaches of security while Trump was president that set the stage for the current crisis.

Noting “Trump’s disdain and disregard for the presidential record-keeping system he was legally bound to adhere to,” the Post reports that even as “advisers repeatedly warned him about needing to follow the Presidential Records Act early in his presidency, his chaotic handling of the documents prevailed.” Stephanie Grisham, a senior Trump staffer, is quoted as saying that Trump routinely had boxes of classified data brought to him in his White House offices and private residence, where he rifled through them for no apparent reason.

“Usually the body man would have brought them upstairs for Trump or someone from the outer-Oval at the end of the day. They would get handed off to the residence and just disappear.”

Boxes of documents even came with Trump on foreign travel, following him to hotel rooms around the world—including countries considered foreign adversaries of the United States.

“There was no rhyme or reason—it was classified documents on top of newspapers on top of papers people printed out of things they wanted him to read. The boxes were never organized,” Grisham said. “He’d want to get work done on long trips so he’d just rummage through the boxes. That was our filing system.”

Nice reporting there, WaPo, but you really buried the lede. Trump schlepped unsecured boxes of classified data with him when he traveled to foreign countries, where his accommodations were anything but secure, and in fact were automatically presumed by US intelligence officials to be comprised? Why is THAT not front page news? Are we really that inured to shock and scandal?

Here’s the list of countries Trump visited while in office: Afghanistan, Argentina, Belgium, Canada, China, Finland, France, Germany, India, Iraq, Ireland, Israel and the disputed West Bank, Italy, Japan, the Philippines, Poland, Saudi Arabia, Singapore, South Korea and the DMZ, Switzerland, the UK, Vatican City, and Vietnam.

Indeed, NARA had been trying to get presidential records back from Trump even while he was still in office, asking—unsuccessfully—for two dozen boxes improperly held in the residential part of the White House. Trump aides were therefore understandably concerned about what was going to happen to all that material when he left office. But few of them realized how far this issue might go.

The WaPo again:

(N)ot even some of Trump’s closest advisers anticipated that what they viewed as a bureaucratic dust-up with archivists would snowball into a serious FBI investigation for potentially violating federal law in removing and retaining classified documents without authorization—a felony punishable by five years in prison.

And it may not be over yet. Per the Post again: “Some NARA officials believe that there might still be more records missing, according to a person familiar with the matter.”

ASK AND YE SHALL RECEIVE. OR NOT.

The claim that the search of Mar-a-Lago was politically motivated and outrageous overreach is the heart of the right wing pushback. On April 12 Trump wrote on his preferred social media platform (or at least his second most preferred): “They could have had it anytime they wanted—and that includes LONG ago. ALL THEY HAD TO DO IS ASK.”

But that claim is unadulterated bullshit. (So much for the ”Truth” in Truth Social.)

As we have seen, the FBI search of August 8 took place “after months of slow-rolling conflict between the former president and law enforcement agencies,” in the words of the WaPo’s Alemany, Dawsey, Carol Leonning, and Rosalind Helderman.  

Trump ignored multiple opportunities to quietly resolve the FBI concerns by handing over all classified material in his possession—including a grand jury subpoena that Trump’s team accepted May 11. Again and again, he reacted with a familiar mix of obstinance and outrage, causing some in his orbit to fear he was essentially daring the FBI to come after him.

The truth is—social or otherwise—that in these repeated, politely worded requests to comply with the law, Trump got the kind of kid gloves treatment that no private citizen ever would. You or I would receive no such courtesy were we suspected of stealing top secret government documents. I suspect the feds would come kicking in our doors with weapons drawn.

Indeed, Frank Figliuzzi argues that “the National Archives and then the Justice Department gave too much deference to the former president, and for far too long,” saying that “The more appropriate critique of the government is that authorities didn’t move quickly enough to protect our nation’s security against a former president who has proved he was never worthy of classified access in the first place.”

Yet none of this deters the right wing spin machine.

On August 21, before the supporting affidavit was released, Republican Congressman Dan Crenshaw of Texas spoke to CNN’s “State of the Union,” as reported by the arch-conservative Murdoch-owned New York Post:

“When you’re going after an ex-president who may run again—this is automatically political…..You cannot separate the legal aspects of this from the political aspects of it. You can’t. And it doesn’t seem to me like they have acted responsibly as a result of that,” he continued, adding that the FBI should have just asked Trump if there were classified documents at Mar-a-Lago.​​...

“A​nd so that’s why a lot of us jumped to the conclusion that this was highly politicized, because it was so unnecessary to do an armed raid to resolve this particular issue that could have been resolved very easily otherwise.”

Rep. Mike Turner (R-Ohio) told CBS’s Face the Nation: “(the FBI) had other options besides just raiding the house,” asking “W​hat is it that was at an imminent national security threat that you didn’t just go to court and ask the court to​ ​order that the documents be delivered to them?​”

Since the release of the affidavit and the revelation of the grave nature of the material in question, and the fact that NARA has been desperately trying to get these materials back for over a year, that the DOJ did go to court and obtain an order that Trump and his people defied, and that his lawyers may have lied to federal authorities about the matter, Dan and Mike have been pretty silent, as have most of their once-voluble colleagues.

So please spare me the fairy tales about how the DOJ could have just “asked” Trump nicely and of course he would have happily complied. Even as reliable a right wing shitbag as Karl Rove, speaking to Fox News, concluded that Trump has not a leg on which to stand:

“President Trump has said several times, ‘all they had do was ask.’ Well, my sense is they were asking for a year and a half, and why he was holding on to these materials when he had no legal authority to do so under the Presidential Records Act is beyond me.”

When you’ve lost Karl Rove, you’ve lost.

WHERE ARE THOSE DAMNED GOALPOSTS NOW?

Post affidavit, the Republican defense has shifted, as we all knew it would. In the WaPo two weeks ago, not long after the search took place, Greg Sargent presciently wrote:

When it comes to the Mar-a-Lago matter, there will be no appeasing Donald Trump and his most fervent supporters. There will be no point at which they acknowledge that any law enforcement activity related to the court-approved search of the former president’s home is legitimate. The sooner we accept this as a fundamental fact about the situation, the better.

A prediction: If this document is released, Trump and many of his supporters will seize on the redactions as “evidence” that the "real rationale" for the search is being covered up—and that the entire process is irredeemably illegitimate.

Now that we have not only the warrant but also the underlying affidavit that led Judge Bruce Reinhart to approve it, the right is reacting precisely as Sargent predicted. It is highly unusual for an affidavit like that to be made public, even with redactions, and Reinhart obviously did so in part to quell the partisan furor. But perhaps he knew that would be futile. The third ranking Republican in the House, Elise Stefanik of New York, crystallized GOP dishonesty when she told Fox News Digital:

“If Joe Biden and his politicized Department of Justice believes (sic) that today’s release will suffice as justification to raid the former President and Biden’s most likely 2024 political opponent, they are sorely mistaken. The American people deserve transparency and not an outrageously, heavily-redacted affidavit to cover up for and politically protect Joe Biden and the FBI for this dangerous and un-American overreach."

Once upon a time Republicans would have been the first to shout about keeping our intelligence operations secret and safe, to include both technical capabilities and the identities and indeed the very lives of human assets. But as evidenced by Trump’s attacks on the Intelligence Community virtually since Day One, and on the uniformed US military("losers and suckers” and “dopes and babies”), not to mention the spectacle of his supporters waving Blue Lives Matter flags while they attacked Capitol police officers, and now cries for the defunding and even outright dismantling of the FBI—it’s clear that this ain’t your grandfather’s GOP anymore, or even your father’s.

As to why Trump took these documents to Mar-a-Lago, I am among those who have speculated, recklessly perhaps, that he intended to sell US secrets or otherwise leverage them to his financial advantage. It has also been suggested that he simply is a venal sonofabitch who wants to take everything he can simply because he can, and even that he is just a pack rat. (NB: Not a legal defense.)

Even short of selling secrets, The Atlantic’s Tom Nichols reminds us of all the ways that what Trump did was incredibly dangerous, given “the possibility that Donald Trump as a citizen is as incompetent and lazy as he was when he was president, and that he could lose control of the materials he was keeping in his house.”

It has long been known that security at Mar-a-Lago is laughably lax. Indeed, just this week a story broke about a Ukrainian-born woman who conned her way into the resort, even posing for “thumb’s up” photos with Trump and Lindsey Graham, among others. If the place is not crawling with spies from hostile foreign intelligence agencies—posing as tourists, guests, club members, vendors, deliverymen, construction contractors, the cable guy, etc., etc.—it would be professional malpractice on the part of our enemies. The place is a spy’s paradise.

It now seems both prescient and prudent that President Biden denied Trump the usual intelligence briefings that previous ex-presidents routinely received.

And there is yet another aspect to the GOP dishonesty over the redactions.

I am quite sure that Trump and his allies would indeed love to see the names of the informants and other witnesses who are cooperating with the FBi in this investigation, some of them presumably from deep inside his inner circle. But would the rest of the information that is redacted from that affidavit exonerate Trump? Not bloody likely. On the contrary: it would almost certainly be massively damning, outlining just how top secret the information was that Trump stole, the grave risks to national security and human life that his theft posed, and the lengths to which he and his people went to obstruct the federal investigation. I say that, because the information in the affidavit—redacted and otherwise—was bone-chilling enough to make a federal magistrate judge approve a search warrant of the home of a former US President, which has never happened before in 233 years of American history. And most Republicans know that, even the ones shrieking in mock horror for the redactions to be removed, a craven ploy, as they know that will never happen, and are privately glad.

At this point, however, the only people left in the Republican Party—which once styled itself the great defender of national security— come in two types: first, the worst Machiavellian cynics and opportunists (looking at you Mitch McConnell, Lindsey Graham, and Marco Rubio), and second, the Kool-Aid drunk members of the cult of personality. Both are beyond rescue.

OF CUTTING IMPLEMENTS

I can’t remember where I heard it but there used to be a time when Republicans were all in favor of punishing people for breaking the rules regarding the handling of classified data. Am I imagining that?

But what we see as ironic, Trump supporters see as exculpatory.

In line with the thought experiment above, when Trumpers survey Mar-a-Lago Gate, they inevitably dismiss it as no worse than what Hillary did. Milder, in fact, somehow. He was President! He had the authority to do whatever he wanted—Article II says so! And she wasn’t prosecuted, but now they’re saying he should be? Hypocrites!

Of course it’s unfair even to make the comparison. Hillary’s misuse of a private email server did not even rise to the level of a recommendation for prosecution by the FBI, despite repeated and lengthy inquiries, famously right up to the eve of the 2016 presidential election, amid banshee-like howls for her head from the bloodthirsty right wing. (Oh, and by the way, numerous Trump staffers went on to use private email servers while in office, even after riding to power by attacking her on that count.)

David French, formerly of National Review, is about as staunch a conservative as they come, and within the world of anti-Trump Republicans, a reliably intelligent observer of such matters. Yet even French makes this false equivalence in an otherwise informative piece in the Atlantic, blithely noting—almost in passing—that the info on Hillary’s private server included “information classified at the same top-secret/SCI level as some documents located in Mar-a-Lago.”

As an attorney and former US Army JAG officer, French ought to know better than to make this sloppy and specious comparison.

According to the factchecking organization Politifact, of the 30,000 Clinton emails that investigators examined in that case, only 113 contained classified information, and only three of those were marked as classified— I’ll repeat that: three!—and even those markings were ambiguous and unclear according to a 2018 Justice Department inquiry. Politifact:

FBI Director James Comey said in 2016 that Clinton should have known that some of the 113 were classified, but others she might have understandably missed….Overall, the agency said it was reasonably confident that there was no intentional misconduct. Broadly, it said classified information had been improperly transmitted, but carelessness, not an intent to skirt the law, was the cause.

Please compare that with what Trump did, as detailed above.

Politifact goes on to quote the national security lawyer Bradley Moss, who notes that “(Clinton’s) e-mails were never marked as classified because these were communications from unclassified government accounts.” In fact, some of what was counted against Clinton was open source information that the CIA later said contained classified intelligence, such as one chain that forwarded a front-page New York Times story about a drone strike. And Clinton immediately and thoroughly cooperated with the federal investigation once she was informed of it.

To analogize Clinton’s actions and Trump’s, then, is wildly off-base, if not deliberately misleading, especially as we contemplate potential punishment for Donald. When FBI DIrector James Comey announced that the Bureau was not recommending Clinton be charged, he noted that all the cases the government had prosecuted in the past “involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice,” concluding: “We do not see those things here.”

French:

If that’s the prudential standard that was applied to Clinton, the same standard should be applied to Trump. This does not mean that he shouldn’t be prosecuted; it does mean that if DOJ chooses to prosecute, it should come forward with clear evidence of the exact misconduct identified above. The distinctions between Clinton’s case and Trump’s case would have to be transparently obvious.

I’ll agree with that. And those distinctions between Clinton’s case and Trump’s case are already “transparently obvious,” except to the willfully blind.

To his credit, French concludes: “The former president was not giving up top-secret national-security documents. DOJ had no choice but to act. Trump has only himself to blame.” Points off, however, for feeding the MAGA disinformation fire by even suggesting that the Clinton and Trump cases are similar.

Hillary’s sins regarding classified materials are akin to forgetting you had a pocketknife in your luggage and having it seized by the TSA. Trump’s are like boarding a 737 with a boxcutter, hijacking the plane, and flying it into the World Trade Center.

ONE ORANGE JUMPSUIT PLEASE, SIZE XXXL

This entire scandal, and the fact that somehow circumstances conspired such that Donald Trump had occasion to have stolen, ultra-sensitive national security documents in his bedroom at Mar-a-Lago, just takes me back to the mind-blowing fact that a D-list celebrity wannabe and psychopathic game show host ever had access to those secrets in the first place….which is itself an indictment of our electoral system, and a measure of the sickness of our nation.

Writing in The Atlantic, Quinta Jurecic, of the Lawfare blog and the Brookings Institution, notes that all of Trump’s scandals flow from his “refusal to divorce the office of the presidency and the good of the country from his personal desires.” In that regard, she calls the sensitive documents matter “the most Trumpy scandal of all.” 

Trump’s apparent squirreling away of classified documents at Mar-a-Lago, and his outrage over the Justice Department’s investigation of that conduct, speaks once more to his vision of his own absolute authority—even after he has departed the presidency. It’s a vision that places Trump himself, rather than the Constitution and the rule of law, as the one true source of legitimate political power.

Jurecic writes that “Again and again during his presidency, Trump did his best to transform executive power into a resource from which to extract personal benefit”—precisely the sort of thing that is anathema to a representative democracy:

The approach of separating the presidency from the individual president evolved for a good reason: The vision of the man inextricable from the office he holds tips quickly into monarchy. The idea that law enforcement cannot and should not be the tool of the leader’s individual whims is central to the divide between the president and the institutional presidency, and therefore to the idea of “rule of law.”

Citing Trump’s habit of referring to any investigations of his wrongdoing as a “hoax,” a “scam,” or a “witchhunt,” she astutely notes that this mentality “followed naturally from his own understanding of absolute presidential power. After all, if the president’s authority is total and unbound by law, then how can the DOJ investigate him?”

The additional twist of the Mar-a-Lago scandal, though, is that Trump is now implicitly claiming that total authority even out of office. If, before, Trump was furious that Special Counsel Robert Mueller could investigate him even when he was the president, now he is outraged that the DOJ would investigate him even though he is Trump. 

So it must be asked: Is this the thing that finally calls Trump to account and results in criminal punishment for at least one of his many crimes against the republic? The hypothetical Trump supporter I conjured up at the top of this piece would say that the very fact that that punishment is Left Wing America’s Holy Grail confirms his contention that he is the target of Javert-like persecution.

But it is not wrong to want to see a habitual offender who is responsible for a cornucopia of egregious crimes over the course of his life and always escaped consequences brought to justice. More to the point, that accountability is essential in order for our democracy to survive. On that front, punishment for Trump’s theft of government secrets will not be a substitute for accountability for his other crimes, such as fomenting the Big Lie and the Insurrection. But it’s a start.

In short: Lock him up.

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Illustration: Jesus Christ (standing, rear) and Donald Trump (front, seated)