Secrets and Lies

Believe it or not, Trump might have done something even worse than inciting January 6th.

Remember when August was traditionally a slow news month?

This week I had a whole essay about Donald Trump’s theft of classified documents ready to go when even bigger news on that front broke. The kakistocracy, apparently, is a fast-moving train. A shinkansen even.

I’m sure Republican hypocrisy will still be going strong next week, so no worries about wasted effort or the perishability of that story. In the meantime let’s dive into the latest breaking news. But first, let’s be clear about our terms, because the media largely has not been.

What’s being investigated here is not merely "the unauthorized possession of classified material," as it is often coolly described. Trump hasn't been caught holding, like a kid with a joint. He actively and illegally took classified documents containing state secrets—some of them, evidently, highly classified—from secure government facilities to his personal post-presidency residence at Elba-Lago. That's called theft, and is subject to laws regarding espionage and worse. And it is not a mere allegation; that part of the story is already established fact.

What remains to be explained is why he did so and what he intended to do with that material...especially if, as alleged, it contained top secret information regarding nuclear weapons.

TODAY IN CONJECTURE

At the risk of pulling a muscle patting myself on the back, earlier last week, before the apocalyptic, atom-splitting part of this story broke, I asked online:

Since the right wing is roiled with conspiracy theory over Raid-a-Lago, let's indulge in some wild speculation of our own.

What sort of classified material do you think Donald Trump illegally took out of the White House and down to Florida? Stuff that was incriminating about his own activities, re Jan 6th or anything else? Maybe. But why? Why not just destroy that stuff?

OK. So more likely he took documents and information that were otherwise valuable to him....and in his world, "valuable" can equate only to something he can monetize. (The man buried his first wife on his golf course for a tax break, after all.)

Talking Points Memo's Josh Marshall has written that it's likely that this search was ordered because "a serious crime about which we do not yet know has occurred." I certainly agree.

Would we be shocked to find, for example, that Trump has been selling top secret US government information to hostile foreign countries, such as Russia? Do we put it past him? We have no evidence whatsoever that this is the case—yet—but it's a scenario that fits the facts available thus far, which few other theories do. I would not be shocked if this turns out to be so.

I said this was going to be wild speculation, didn't I?

Turns out the speculation wasn’t so wild after all. The day after I wrote that, the Washington Post revealed that among the material the FBI was seeking at Mar-a-Lago was information regarding nuclear weapons, a revelation that—for everyone outside the Cloud Cuckooland that is the American right wing—quickly dispelled any questions about why the DOJ felt this matter was serious enough to merit a search warrant.

And it makes sense. As I said in that Facebook post, does anyone really think that it would be beyond the pale for Donald Trump to sell or otherwise leverage access to US nuclear secrets for personal gain, financial or otherwise? Of course not. He would do it in a New York minute.

In this scenario, the smart money is now on the Saudis, rather than the Russians, as the buyers. Riyadh has long been desperate to get the Bomb, and Trump has deep financial ties there—and Jared even more so. He is even part of the Saudis’ new LIV pro golf venture, the so-called “Bonesaw Tour.” The Russians would still love to have TS/SCI intel about the US nuclear arsenal, of course, or learn what we know about theirs, and Donald’s man-crush on Putin keeps that in the running for sure. But for now the House of Saud seems the most likely candidate.

It’s important to note for the record that we do not yet know for certain that Trump stole nuclear secrets, let alone sold them, so let’s hold off measuring him for his orange jumpsuit just yet (and blowing up the balloons and lighting the sparklers). But it is certainly within the realm of possibility, with enough credible evidence—more likely than not, from an inside source who flipped on the Donald—that the DOJ felt it needed to obtain that warrant, and a federal magistrate judge agreed, especially after (we would later learn) Trump had already defied a subpoena on that front.

A few weeks ago in this blog, I published a two-part essay about Moore v. Harper, a case that the Supreme Court will hear next term, metaphorically calling it “the atomic bomb of election subversion.” I did not think that, nineteen months after he was chucked out of office, Trump would be threatening American security with actual atomic bombs. I really thought that attempting a violent overthrow of the government was as bad as it could get. But now we find that, even from exile, Trump has—possibly—managed to do something arguably even worse than that. Reasonable people can disagree about which is the greater sin. But how about a dude credibly accused of both?

HOAX DU JOUR

Trump’s first response to the news about nuclear materials was to claim that it was a hoax perpetrated by his enemies, the same defense he used against allegations of collusion with Russia. Needless to say, MAGA Nation did not need any convincing on that point; it ate it up with a spoon.

(Trump may not be exactly a one trick pony, but it does appear that his repertoire is limited to two. The other move, also deployed in this same scandal, is to claim there was nothing untoward about what he did, which was what he did over Ukraine and the “perfect” Zelenskyy call. More on that in a moment.)

Trump also claimed that FBI agents planted evidence while they were at Mar-a-Lago. Per Politico, he shrieked on Truth Social:

“Why wouldn’t the FBI allow the inspection of areas at Mar-a-Lago with our lawyer’s, or others, present,” Trump wrote on Truth Social. “Made them wait outside in the heat, wouldn’t let them get even close - said ‘ABSOLUTELY NOT.’ Planting information anyone? Reminds me of a Christofer [sic] Steele Dossier!”

But, with apologies to Mary McCarthy, by now we ought to know that you can’t believe a word that leaves Trump’s lips—or fingers—including “and” and “the.” His claim that his lawyers were not allowed to observe the search was quickly contradicted by those very lawyers, one of whom told the press that she was in fact present. (Trump lied—stop the presses.) That same lawyer also let slip—to Laura Ingraham of all people, and her millions of viewers—that the Trump family itself was able to watch the search in real time, remotely, from Manhattan, via closed circuit TV.

The only guy with worse lawyers than Trump is Alex Jones.

More to the point, his suggestion of planted evidence was a telling pre-emptive strike, implying that Trump knows bad shit is going to come out. As The Atlantic’s Peter Wehner writes, “Already, Trump is laying the groundwork for his followers to dismiss any evidence of wrongdoing that the FBI may have uncovered.” And because the material in question is classified, the DOJ will never be able to make the evidence 100% public, which of course will allow Trump to continue to claim that the accusations are a frame-up.

Of course, Trump’s defenders, from redhatted MAGA minions in the street like that radio caller to the tippy top leadership of the GOP, will be utterly unmoved by any evidence that comes out of this investigation, even if were to show that Trump was selling US nuclear secrets, or the names of American spies, or pictures of Lindsey Graham dressed like Little Bo-Peep. They will parrot Trump’s claim that it’s a hoax, or say that the proof is insufficient or fake, that the Deep State has been out to get Donald since day one, and on and on. They will rationalize and excuse anything and everything, and whether that loyalty to the man is driven by Kool-Aid drunk near-religious belief or merely cynical opportunism matters not a whit, nor makes it any more defensible either way.

We have long since passed the point where any reasonable person thinks, “Aha! This, at last, is the scandal that will finally break the fever that has possessed these people!” I eagerly await some right wing apologist (top candidate: Marc Thiessen) to argue that Trump was right to sell nuclear secrets to the Saudis—if something like that proves to be case—because of moves by the Biden administration to rejoin the JCPOA.

In this regard, the fealty of Trumpworld continues to astound.

In a recent piece called “Why Trump Has To Sell A Fantasy of Collective Persecution,” The Washington Post’s Paul Waldman quotes a tweet from the Republican members of the House Judiciary Committee in the wake of the Mar-a-Lago search, and the Inflation Reduction Act’s provisions for cracking down on corporate tax evasion:

The IRS is coming for you. The DOJ is coming for you. The FBI is coming for you. No one is safe from political punishment in Joe Biden’s America.

Here in miniature we see a perfect example of how Trump has deftly welded his own personal interests to those of his followers, scamming them into believing they are one and the same, and that any misfortune that befalls him—even if it is in fact his own fault, and well-deserved—is an attack on them.

(A) sense of oppression has become central to motivating conservative voters, a way of keeping them engaged, angry and feeling that they have a personal stake in the outcome of every political event, no matter how remote it might seem. So it’s being repeated over and over.

You’re not just an ordinary person with an ordinary job and an ordinary life. You’re a freedom fighter waging war against forces of darkness to secure liberty’s future. The more grubby and personal Trump’s misdeeds are, the more important it is to keep telling the base that story so its allegiance won’t waver.

So every absurd Trump story will have to be presented this way: He took those classified documents for you, he cheated on his taxes for you, he tried to steal the election for you, and if, heaven forbid, he should face accountability for his wrongdoing, you will be the one who pays the price.

To any reasonable person, it might sound absurd. But the MAGA devotees believe it with all their hearts.

When a man has pulled off a trick like that, he can get away with damned near anything.

STAY CLASSY, SAN DIEGO

Setting aside the nuclear issue, we do know that Trump took classified material of some significant kind from the White House to Mar-a-Lago. Not even he or his acolytes dispute that, only that there was anything wrong with it—per above, the same defense they deployed over Ukraine.

A common, if dishonest, argument already being floated by Trump’s defenders, and one that we are sure to hear a lot more going forward, is that the President can declassify anything he or she wants, at will. Already it has been made by such cretins as Stephen Miller, Ric Grenell, and Kash Patel (also the author of a children’s book promoting the Big Lie called The Plot Against the King). On Truth Social, Trump himself declared, "It was all declassified."

Of course, these claims cannot be taken seriously because they are all made in the worst possible faith. It goes without saying (but let’s say it anyway!) that these very people would hardly be so cavalier if a Democratic chief executive behaved thus. Their outrage over even the tiniest breach of the protocol for handling classified material by Democrats is volcanic  (#LockHerUp!), while their own record on that count is eyepoppingly awful, and hypocritical beyond belief.

So let’s just say that Messrs. Miller, Grenell & Patel are hardly the authorities on this matter.  

The practical reality regarding declassification is much more complicated, because the classification system, like many mechanisms of our constitutional democracy, was never intended to reckon with a commander-in-chief who was openly malevolent.

Dareh Gregorian and Marc Caputo of NBC News write:

Richard Immerman, a historian and an assistant deputy director of national intelligence in the Obama administration, said that, while the president has the authority to declassify documents, there’s a formal process for doing so, and there's no indication Trump used it.

“He can’t just wave a wand and say it’s declassified,” Immerman said. “There has to be a formal process. That’s the only way the system can work,” because otherwise there would be no way of knowing who could handle or see the documents.

“I’ve seen thousands of declassified documents. They’re all marked ‘declassified’ with the date they were declassified,” Immerman said.  

Surprise, surprise: none of the documents returned to the National Archives from Mar-a-Lago earlier this year were so marked. (On the contrary: Gregorian and Caputo write that “Archivist David S. Ferriero, an Obama appointee, said in a letter to the House Committee on Oversight and Reform in February that his agency had ‘identified items marked as classified national security information within the boxes’ from Mar-a-Lago.”) Nor presumably were any of the ones the FBI seized this week.

Laughably, Trump’s minions insist he did in fact declassify those materials, they just didn’t get around to marking them.

And the dog ate my homework.

(The sneering contempt for the entire classification and declassification process displayed by Miller especially renders this already ridiculous claim even less plausible.)

Prof. Stephen Vladeck, a national security expert at the University of Texas School of Law, notes that “President Trump had the power to declassify whichever documents he wanted to while he was president, but not any longer. So I’m not sure it’s at all obvious that he could now claim that he declassified documents while he was still in office if there’s no evidence to support it.”

The idea that a president could declassify intelligence and not tell anyone except his toadies is absurd, of course, as a matter of functional policy. Gregorian and Caputo again:

A source who had discussed the matter with Trump but was not authorized to reveal those conversations said the former president wasn't concerned with formal protocol.

"We’ve told him there’s a process and not following it could be a problem but he didn’t care because he thinks this stuff is dumb,” the source said. “His attitude is that he is the president. He is in charge of the country and therefore national security. So he decides.” 

The authors quote the national security lawyer Bradley Moss, as saying, "That's not how it works. Trump could say we're declassifying this until he's blue in the face, but no one is allowed to touch those records until the markings are addressed.”

18 U.S. Code § 793, for instance, pertains to "gathering, transmitting or losing defense information," and penalizes anyone who "through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed,” or "willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it."

That means that not only Trump but any of his aides who participated in the removal of this information from its proper locations and transfer to Mar-a-Lago could also face criminal charges.) NBC again:

Immerman said given the information that’s already emerged from the National Archives, it’s likely any classified information that went to Mar-a-Lago was mishandled en route. “When they’re moved you can’t just put them in a briefcase—they’re put in pouches that are double locked,” he said. “When I worked in national intelligence I could not carry documents by myself—I had to be accompanied by someone,” Immerman added.

Moreover, Vladeck notes that "some of the criminal statutes that are being discussed apply whether or not the underlying information is classified…..The Presidential Records Act and other similar statutes constrain President Trump’s ability to do what he wishes with at least some of the official documents from his tenure, regardless of whether those documents include sensitive national security information.”

In other words, even if this material were declassified, the documents are still US government property, and you’re still not allowed to have them in your private possession.

Hey, as a Military Intelligence officer I used to have a Top Secret/SCI security clearance. How come nobody told me I could take my work home with me?  (“You can,” an old Army buddy of mine recently quipped in response. “Once.”) Anyone who has ever worked with classified materials understands the gravity of what Trump has done, and caused others to do, acts that are to Hillary’s emails as murder is to jaywalking. Claims by Trump and his surrogates that any mishandling of classified material was purely accidental and therefore innocent are risible.

People get kicked out of government service, have their careers and reputations ruined, and even go to prison for less.

Ironically, in 2018, by way of grandstanding over Hillary’s actions, then-President Trump increased the penalties for "unauthorized removal and retention of classified documents or material" raising it from a misdemeanor to a felony, punishable  by one to five years in prison. When it comes to the Espionage Act, Trump could be facing ten years in prison. Heretofore most legal experts have said that even if he is indicted for felonies and subsequently convicted, he will never do any prison time. But that was before these new accusations emerged.

It would, of course, be the height of irony if, after railing ad nauseam over Hillary’s infinitesimally less serious mishandling of classified documents, Donald Trump is finally taken down over this very issue.

DUKE NUKEM

To be fair, there are credible experts who take the more expansive view of presidential authority regarding declassification  One is J. William Leonard, who led the federal government’s Information Security Oversight Office under George W. Bush. Leonard told The Atlantic‘s Graeme Wood that the president’s declassification power is pretty much unlimited, and requires no protocol; Trump could have “waved his hand over a U-Haul trailer” full of classified data “as it headed out the White House driveway and down I-95 toward Florida, and there would have been no classified material in there to mishandle.” (Although that U-Haul could be reclassified by a subsequent president.)

This is not far off from the disingenuous claims made by Trump’s yes-men. But Leonard echoes Vladeck, Immerman, Moss, and other critics in noting that “Trump’s power to declassify ended with his presidency,” and there is no proof he declassified anything before leaving office, except his word that he did so.

(Pause for laughter.)

But when it comes to nuclear matters, there is yet another wrinkle to this week’s events and the chaos they have triggered, which is why Wood’s Atlantic piece is bluntly titled (bottom line up front), “Not Even the President Can Declassify Nuclear Secrets.”

There are certain materials that presidents cannot classify and declassify at will. One such category of material is the identity of spies. Another is nuclear secrets.

(Under) The Atomic Energy Acts of 1946 and 1954….Anything related to the production or use of nuclear weapons and nuclear power is inherently classified, and Trump could utter whatever words he pleased yet still be in possession of classified material. Where are our nuclear warheads? What tricks have we developed to make sure they work? This information is “born secret” no matter who produces it.

The restrictions on documents of this type are incredibly tight. In the unlikely event that Trump came up with a new way to enrich uranium, and scribbled it on a cocktail napkin poolside at Mar-a-Lago early this year, that napkin would instantly have become a classified document subject to various controls and procedures, and possibly illegal for the former president to possess. Of course if he did so, no prosecutor would pursue him. A certain amount of leeway is crucial to the system.

If Trump was keeping nuclear secrets in the storeroom of his country club, without even the benefit of a padlock, and resisted attempts to secure those secrets against infiltrators and spies, a prosecutor might reasonably take more interest.

In other words, we are back to where we started in this essay: with the possibility that Donald Trump stole nuclear secrets—and the mind reeling at what he intended to do with them, or has already done—and not even the faintest sliver of a reason to which he can cling by way of explaining or defending it.

How that unprecedented, almost unfathomable situation ultimately plays out remains to be seen. In addition to legal consequences for Trump, one hopes that a couple of other positive things that might come out of this scandal would include measures to address the insane overclassification of intelligence within the US government, and new limits on presidential authority to declassify it, now that a presidential figure has arisen that the Founding Fathers—for all their fear of monarchs—failed to contemplate even in their worst nightmares.

Another thing we might consider reforming is how we pick those presidents in the first place.

ANNUS HORRIBILIS (READER’S DIGEST VERSION)

Trump really did have a terrible, horrible, no good, very bad week. It began Monday with the search of Mar-a-Lago, and continued with the publication of an article in The New Yorker that same day revealing that he told John Kelly he didn’t want wounded veterans at his big parade. In that same piece we also learned that he complained to “his” generals that they did not give him the same slavish loyalty as Hitler’s (minus the assassination attempts).

Then on Wednesday, in a scene that must have resembled avant garde performance art, Trump took the Fifth a reported 440 times in a deposition for New York state AG Letitia James's investigation of potential real estate fraud by the Trump Organization. ("If you're innocent, why are you taking the Fifth Amendment?"—Donald Trump, on the campaign trail, 2016.) And then on Thursday Merrick Garland made a rare public appearance, asking a federal court to unseal the Mar-a-Lago search warrant, resulting in an avalanche of press coverage over just how serious the DOJ allegations against Trump are that prompted Monday’ search of his home.

And yet, informed sources reported that the muckity mucks in Trumpworld felt they were “winning” this week (bigly) because they were successfully able to cast all that as more persecution of The Former Guy, feeding the aforementioned perpetual grievance machine that is the very engine of Trumpism and indeed the entire contemporary GOP.

That gleeful, counterintuitive view is deeply disgusting, and ignores the grave legal—and political—jeopardy that Trump is in. But it is not entirely wrong. Several savvy observers from Earth 1, including former federal prosecutor and Mueller team member Andrew Weissmann and the New York Times’s Katie Benner, noted Team Trump’s astonishing success in controlling the Mar-a-Lago narrative, such that tout le America was talking about whether the FBI and DOJ acted properly and not what the fuck Donald Trump was doing stealing classified material and taking it there in the first place…..and more to the point, what exactly was in those documents that made him do so.

That began to change with the revelations of just how classified those materials were, especially the part that relates to mushroom clouds. All praises due Merrick Garland for his brilliant jiujitsu in turning Trump’s demagoguery against him, effectively calling his bluff, if you will excuse the mixed metaphor.

Where this goes from here is anyone’s guess. But just the headline that a former US President is under investigation for violation of the Espionage Act is gobsmacking, and even more so at a time when most of us thought our capacity for being gobsmacked was maxed out. The efforts of the January 6th Committee have already heightened the chances that Trump will be indicted and prosecuted by the Department of Justice for various crimes. If the allegations prove credible about nuclear secrets in the classified documents that Trump stole and illegally took to Mar-a-Lago, it will be impossible to imagine that he will not be. (Conviction is a separate question.) In that case, all the speculation about which is worse for the republic, to prosecute a criminal ex-president or not to do so, will be moot.

One would think that attempting a violent coup d’état would merit indictment, but apparently there is a debate about that. There can be no rational debate about the necessity of punishment for stealing nuclear secrets.

Or so one would think.

********

Photo: Mar-a-Lago, Donald Trump’s private club and residence in Palm Beach, Florida. It is not yet clear if one of the things the DOJ is investigating is crimes against architecture.

Credit: Associated Press