After the redacted affidavit was released yesterday, Trump let loose a smoke screen of posts on pseudo-Twitter, apparently trying to get his followers to think about anything but what was right in front of them. (Most of the pseudo-tweets were about his nemesis, Liz Cheney.) I was surprised there was so much in the affidavit that was not redacted, although I sure wasn’t surprised to see this: “There is probable cause to believe that additional documents that contain classified NDI or that are Presidential records subject to record retention… remain at the PREMISES. There is also probable cause to believe that evidence of obstruction will be found at the PREMISES.” The FBI asked for and received permission to search Mar-a-Lago after reading 184 top secret documents he had stolen— and in some cases written on— when he left the White House.
Nor could this come as a surprise to anyone who has been paying attention since 2016: “Based on the foregoing facts and circumstances, I submit that probable cause exists to believe that evidence, contraband, fruits of crime, or other items illegally possessed in violation 18 U.S.C. §§ 793(e), 2071, or 1519 will be found at the PREMISES.”
The main point we could get from the redacted affidavit yesterday was that this is an unprecedented criminal probe into whether Trump took secret government papers and refused to return them even as he was repeatedly told he must. His attitude was that they were his to do with as he pleased. Yesterday, the NY Times editorial board advocated forcefully for accountability. “The spectacle of a former president facing criminal investigation,” they wrote, “raises profound questions about American democracy, and these questions demand answers. Trump’s unprecedented dented assault on the integrity of American democracy requires a criminal investigation. The disturbing details of his postelection misfeasance, meticulously assembled by the Jan. 6 committee, leave little doubt that Mr. Trump sought to subvert the Constitution and overturn the will of the American people. The president, defeated at the polls in 2020, tried to enlist federal law enforcement authorities, state officials and administrators of the nation’s electoral system in a furious effort to remain in power. When all else failed, he roused an armed mob that stormed the Capitol and threatened lawmakers. The Justice Department is reportedly examining Trump’s conduct, including his role in trying to overturn the election and in taking home classified documents. If Attorney General Merrick Garland and his staff conclude that there is sufficient evidence to establish Trump’s guilt on a serious charge in a court of law, then they must indict him, too.”
This board is aware that in deciding how Trump should be held accountable under the law if it is necessary to consider not just whether criminal prosecution would be warranted but whether it would be wise. No American president has ever been criminally prosecuted after leaving office. When President Gerald Ford pardoned Richard Nixon, he ensured that Nixon would not be prosecuted for crimes committed during the Watergate scandal; Ford explained this decision with the warning that such a prosecution posed grave risks of rousing “ugly passions” and worsening political polarization.
… No matter how careful Gardland is or how measured the prosecution might be, there is a real and significant risk from those who believe that any criticism of Trump justifies an extreme response.
Yet it is a far greater risk to do nothing when action is called for. Aside from letting Trump escape punishment, doing nothing to hold him accountable for his actions in the months leading up to Jan. 6 could set an irresistible precedent for future presidents. Why not attempt to stay in power by any means necessary or use the power of the office to enrich oneself or punish one’s enemies, knowing that the law does not apply to presidents in or out of office?
More important, democratic government is an ideal that must constantly be made real. America is not sustained by a set of principles; it is sustained by resolute action to defend those principles.
Immediately after the Jan. 6 insurrection, cabinet members reportedly debated privately whether to remove Trump from power under the authority of the 25th Amendment. A week after the attack, the House impeached Mr. Trump for the second time. This editorial board supported his impeachment and removal from office; we also suggested that the former president and lawmakers who participated in the Jan. 6 plot could be permanently barred from holding office under a provision of the 14th Amendment that applies to any official who has “engaged in insurrection or rebellion” or given “aid or comfort” to those who have done so. But most Republicans in the Senate refused to convict Trump, and Congress has yet to invoke that section of the 14th Amendment against him. As a result, the threat that Trump and his most ardent supporters pose to American democracy has metastasized.
Even now, the former president continues to spread lies about the 2020 election and denounces his vice president, Mike Pence, for not breaking the law on his behalf. Meanwhile, dozens of people who believe Trump’s lies are running for state and national elected office. Many have already won, some of them elevated to positions that give them control over how elections are conducted. In June the Republican Party in Texas approved measures in its platform declaring that Biden’s election was illegitimate. And Trump appears prepared to start a bid for a second term as president.
Trump’s actions as a public official, like no other since the Civil War, attacked the heart of our system of government. He used the power of his office to subvert the rule of law. If we hesitate to call those actions and their perpetrator criminal, then we are saying he is above the law and giving license to future presidents to do whatever they want.
…If Garland decides to pursue prosecution, a message that the Justice Department must send early and often is that even if Trump genuinely believed, as he claimed, that the election had been marred by fraud, his schemes to interfere in the certification of the vote would still be crimes. And even though Trump’s efforts failed, these efforts would still be crimes. More than 850 other Americans have already been charged with crimes for their roles in the Capitol attack. Well-meaning intentions did not shield them from the consequences of their actions. It would be unjust if Trump, the man who inspired them, faced no consequences.
No one should revel in the prospect of this or any other former president facing criminal prosecution. rump’s actions have brought shame on one of the world’s oldest democracies and destabilized its future. Even justice before the law will not erase that stain. Nor will prosecuting Trump fix the structural problems that led to the greatest crisis in American democracy since the Civil War. But it is a necessary first step toward doing so.
When a Fox News anchor, Sandra Smith, mouthed the official GOP line-- "Going back to the New York Post headline... you could have just asked"-- Karl Rove responded "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 PRA is beyond me!"
National Security attorney Brad Moss: "Absent some unforeseen change in factual or legal circumstances, I believe there is little left for the Justice Department to do but decide whether to wait until after the midterms to formally seek the indictment from the grand jury... (1) Trump was in unauthorized possession of national defense information, namely properly marked classified documents. (2) He was put on notice by the U.S. Government that he was not permitted to retain those documents at Mar-a-Lago. (3) He continued to maintain possession of the documents (and allegedly undertook efforts to conceal them in different places throughout the property) up until the FBI finally executed a search warrant earlier this month. That is the ball game."
Had Nixon been tried and appropriately punished for his crimes, Trump wouldn’t have behaved the way he did. Worth reading the Washington Examiner column that Tevi Troy posted yesterday. That’s where I found this graphic: