The GOP Is A Nation In Decline
If I was a conspiracy theorist I might say that the whole FBI shebang at Mar-a-Lago yesterday— which the White House claims to have first heard about on social media— was a set piece and one big show that all sides had agreed to in advance— including Trump’s non-presence— despite all the subsequent bleating. The purpose of this kind of deal would be to:
1- keep Trump out of prison
2- keep Trump out of the White House
Since all the information about the so-called raid has either come from Trump or from speculation, the facts aren’t really clear yet. Presumably the Department of Justice will make some kind of official statement today which will at least indicate if, indeed, this search was about Trump stealing classified records from the White House.
Aside from being a massive fundraising opportunity for Trump, it is also an opportunity for the Republican Party grievance machine to rev all the way up into overtime— and beyond… and even beyond that. No one could be happier about how this appears to be playing out than GOP emptiest of empty suits Kevin McCarthy.
Gym Jordan ran to Laura Inghraham for some performance art last night: “Merrick Garland, Chris Wray, come to the House Judiciary Committee this Friday and answer our questions about this action today, which has never happened in American history. What was on the warrant? What were you really doing? What are you looking for? Why not talk to President Trump and have him give you the information you’re after? This is unbelievable.” Presumably a chat with Judiciary Committee chairman Jerry Nadler might be the appropriate way to effect that, rather than whining on Laura Ingraham’s show.
Unbelievable or not, let’s be real: there no chance a curmudgeon like Merrick Garland would ever have OK-ed a raid on the home of the former president by an FBI run by the former president’s pick (Chris Christie’s former lawyer) if they didn’t already know exactly what they were looking for in terms of an actual crime. Nor would a judge have granted them a warrant for anything less.
The question on everyone’s mind last night was would the theft of official documents actually prevent Trump from running for office? Charlie Savage looked at Section 2071 of Title 18 of the United States Code for NY Times readers. The statute “makes it a crime if someone who has custody of government documents or records, ‘willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies or destroys’ them. If convicted, defendants can be fined or sentenced to prison for up to three years.Ina edition, the statute says, if they are currently in a federal office, they ‘shall forfeit’ the office, and they shall ‘be disqualified from holding any office under the Unites States.’”
There is, however, some debate if Congress could pass a law— like the above statute— overriding the constitution’s determination about who is and isn’t qualified to run for president.
The L.A. Times’ Harry Litman looked at the same question, noting that “a charge related to official documents could swiftly and cleanly serve as the basis for a satisfactory resolution of the pox on the country that is Donald Trump.”
The Justice Department and the FBI have crossed the Rubicon, and they know it. It’s near certain that Atty. Gen. Merrick Garland would have had to sign off on such a move.
The majority of those who are the subjects of federal warrants wind up getting charged with federal offenses. That is, Monday’s warrant and the search unequivocally lock Trump and the government he used to lead in an arch-antagonistic posture, playing for the highest of stakes and for keeps.
It might seem puzzling, even disappointing, that the Justice Department and the FBI would have chosen to throw down the gauntlet for a crime— “concealment, removal, or mutiIation generally” of official documents— that is far from the most serious of those we think the former president may have committed, such as obstruction of justice, fraud against the United States and, most dramatically, seditious conspiracy.
But a charge of mishandling or destroying official documents is no petty offense, not under the federal code (which provides for a prison sentence of up to three years) and not in the culture of the Justice Department, which takes it very seriously.
In Trump’s case, no surprise, the potential offense appears to be particularly brazen and damaging. Among the documents he reportedly took with him and has declined to return are true historical items that belong to the American people, including the letter President Obama left for him when he took office and his bizarre valentines to North Korea dictator Kim Jong-Un.
Further, a documents charge, as presidential accusations go, would be relatively easy to prove and would sidestep issues of 1st Amendment protected political activity that Trump no doubt would claim if he were indicted in relation to, say, his incendiary speech at the Ellipse on Jan. 6.
And most important, there’s this: Anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies or destroys” official documents “shall be” disqualified— barred for life— from holding future federal office.
If Trump were convicted of this charge, the plain meaning of the law would permanently take him out of commission as a candidate for president, and all talk of his 2024 candidacy would be dead in the water. Likewise, all the support and polarization that the mere possibility of another Trump presidency raises.
There is a possible constitutional challenge to the provision— a Supreme Court case that holds that Congress cannot add to the enumerated qualifications for office in the Constitution— but it’s possible Garland has hit on a grand resolution of the huge political, cultural and legal problem that Trump’s malfeasance and norm-busting actions have created.
The department could agree to a modest jail sentence, or perhaps none at all, and decline to pursue the laundry list of other charges; Trump in turn could agree to not challenge the disqualification provision.
Those who yearn to see Trump in an orange jumpsuit without his fake tan and put away for years would be frustrated. At the same time, the former president could hardly emerge as a potent MAGA martyr.
Trump would be duly punished. Were he exiled from office, it would remove at a stroke the most dangerous and polarizing aspect of his continued defiance of the rule of law. To adapt the words of President Ford when he pardoned Nixon, Monday’s Mar-a-Lago search could well be the beginning of a fitting and broadly— if not universally— accepted end to our latest “long national nightmare.”
Don’t we all just wish it were that simple and straightforward! A late development: Trump now has a copy of the warrant, including what the FBI was searching for, a delineation of all the crimes the Department of Justice has reason to believe he as involved in and a list of everything that was seized. Strangely, as of this afternoon, he hasn't released a copy. What he did release, though, just a few hours after "the raid," was this campaign video on his make-believe-Twitter platform. “We are a nation that has weaponized its law enforcement against the opposing political party like never before.” Count the rest of the lies. Use an abacus if you need one:
Too bad Trump supporters don't read... or at least don't read Jonathan Chait. In his New York Magazine column this afternoon, What Is Really Unprecedented Is the Criminality, he responded to the outrage from the far right over holding Trump to account. "In response to the FBI raid on Mar-a-Lago, as is often the case, the revealing statements in the Republican Party come not from the fringe actors calling for civil war or defunding the FBI but the respectable statesmen in the mainstream. 'No former President of the United States has ever been subject to a raid of their personal residence in American history,' complains Mike Pence on Twitter... While it is factually true that there is no history of a former American president being raided by the Feds, these observations implicitly treat the FBI’s behavior as the source of the historic break. The reason Donald Trump is the first former president to be treated like a criminal is that he is the first former president who is a criminal."
Trump has spent his life skirting the edges of the law. The New York Times reported that he and his father, Fred Trump, engaged in an elaborate fraud, including setting up fake companies with phony receipts, to allow Fred to funnel money to Donald illegally. Other reporters have found Trumpcontinuing to use false accounting and abuse charitable donations in order to illegally enrich himself.
The Trump presidency was a long parade of alarmed subordinates reporting on his contempt for the rule of law and obsessive avoidance of any evidence that might implicate him in wrongdoing. He has berated lawyers for taking notes on his presence, citing the positive example of Roy Cohn, a lawyer he shared with several leading mobsters. It seems at least possible, even downright likely, that Trump’s paranoia about written evidence, which extended to flushing documents down the toilet, reflected something deeper than mere sloppiness. He certainly behaved like a man who had things to hide.
...If a Trump prosecution risks setting off some deeper crisis in the system, that is because Republicans formed a loyalty to a man who rose to his position by flouting the law. This is not the FBI’s fault. If Republicans don’t want the humiliation of a former president their base adores facing potential prosecution, they should have chosen a president who wasn’t a lifelong crook.