But I Bet He Gets A Mug Shot When He's Indicted By The Feds
Yesterday, Nathan Gonzales speculated that “the political fallout from Trump’s legal problems could reach beyond his own candidacy… One or more Trump trials will be a media spectacle. It will be difficult for Republicans to cut through the legal noise to push their own campaign messages, and candidates may be forced to respond to a steady drip of news coming out of the courtroom. There will be no shortage of testimony, evidence, and revelations to be commented on, potentially for days, weeks, or months. Gaining attention can be difficult for congressional candidates, particularly in presidential years. Trump on trial in one or multiple courtrooms would be an additional huge obstacle, particularly for House candidates. If candidates have already responded to the initial Trump indictment, then they’ve created the expectation that they’ll comment on future Trump legal issues. It could be a vicious cycle that doesn’t end for months. At a minimum, Trump’s legal problems and his feud with Florida Gov. Ron DeSantis have been a distraction from Biden. At 43 percent approve and 53 percent disapprove, the president’s job rating is the worst it’s been in two months, according to the FiveThirtyEight average. Republicans should want an election focused on an unpopular incumbent and not their legally-challenged nominee.”
David Graham had a good suggestion yesterday for Republican down-ballot candidates: Don’t Take Your Eye Off Jack Smith. The clearest threat to Trump isn’t in NY today but “the one posed by the Justice Department’s investigation into his handling of classified documents. Bragg’s stuff is likely to be seen historically as a “footnote to Trump’s worst behavior once he was elected president…The documents matter is different. Unlike the DOJ probe into Trump’s attempts to steal the 2020 election (which, like the documents investigation, is being run by Special Counsel Jack Smith) or an investigation into the 2020 election in Fulton County, Georgia, it does not cut straight to Trump’s worst damage to American democracy. Yet absconding with presidential records like this is a crime that only a high-ranking official like the president could commit. Beyond that, it has long appeared to be the most straightforward case to prosecute. The law is simple, and the general outline is clear: Trump took the documents, and he refused to give them back when asked.
An eye-opening new report in the Washington Post underscores the strength of the possible case against Trump— and in particular the suggestion that he has tried to obstruct the investigation.
As has now become clear, classified documents do occasionally end up in former officials’ possession, as in other recent cases involving President Joe Biden and former Vice President Mike Pence. Many officials caught with such documents complain that they are victims of overclassification, but the law is the law. Even so, two things set Trump’s situation apart: First, the documents are extremely sensitive, reportedly covering nuclear secrets and programs aimed at China and Iran. Second, when the government asked Trump for the documents, he (unlike Biden and Pence) refused to hand them over. This truculence is why the FBI ended up making an unannounced search in August, which turned up more than 100 documents marked classified.
“Federal investigators have gathered new and significant evidence that after the subpoena was delivered, Trump looked through the contents of some of the boxes of documents in his home, apparently out of a desire to keep certain things in his possession, the people familiar with the investigation said,” the new report details.
If true and provable, that would be a major development. Trump has tried to muddy the waters related to the documents. He has argued that the papers he took actually belonged to him. Questions also exist about who actually moved documents and what Trump knew about what was in them, and he has historically been clever about maintaining a veneer of deniability. But evidence that shows that Trump personally went through the documents after the subpoena would strongly suggest that obstruction had taken place and set the case even further apart from other classified-material probes. No legal theory suggests that the target of a subpoena can pick and choose whether to comply with some parts and not others.
This is just one newspaper report, of course. But it sounds a lot like something Trump would do, doesn’t it? In fact, he has already all but confirmed it. During an interview last month, Fox News’s Sean Hannity tried to inoculate Trump, who instead eagerly incriminated himself.
“I can’t imagine you ever saying, ‘Bring me some of the boxes that we brought back from the White House. I’d like to look at them,’” Hannity said. “Did you ever do that?”
“I would have the right to do that,” Trump replied. “There’s nothing wrong with—”
“I don’t think you would do it,” Hannity pleaded.
“Well, I don’t have a lot of time, but I would have the right to do that. I would do that,” Trump said. “There would be nothing wrong.”
Hannity, perhaps sensing danger, tried to change the topic, but Trump charged ahead. He noted that the estate of Richard Nixon ended up receiving $18 million in a federal settlement over presidential records. (Left unsaid: that Nixon’s misdeeds were a catalyst for changing the law on records to what exists now.) So Trump has already said he’d do exactly the sort of obstruction suggested, and he’s provided a profit motive.
Smith’s probe has perhaps gotten less attention than the others because, like Robert Mueller before him, he has overseen an investigation with few leaks. Mueller, too, ended up zeroing in on obstruction, and provided clear evidence that Trump had obstructed justice— though he refused to say so plainly or bring charges, citing DOJ guidance against indicting a sitting president. Smith faces no such procedural hurdle.
At the time of the Mueller probe, Trump’s defenders took to writing off any instances of obstruction as mere “process crimes,” as though some crimes are somehow not really crimes. Often, prosecutors do bring obstruction charges when the act impedes prosecuting an underlying crime. But in this case, not only is obstruction an effort to avoiding prosecution, but obstruction is a perpetuation of the crime itself— keeping the documents. Smith has an opportunity to recognize that and act where the previous special counsel couldn’t or wouldn’t.
Anyone who knows Trump, probably suspects him of hawking top secret documents, more likely to the Saudis or Israelis than to the Russians or Chinese but that wouldn’t matter one bit. Even the MAGAts would desert him if that can be proven.
This morning, Zach Basu added that “A year from now, Trump may look back with envy at the sordid hush money case that brought him to Tuesday's historic arraignment — the first for a former president, but potentially not the last… Investigators suspect that Trump personally examined some of the boxes containing classified material— apparently out of a desire to keep certain documents— after receiving a grand jury subpoena demanding they be returned. Trump’s valet testified that the former president then ordered him to move the boxes— an account corroborated by surveillance footage. Unlike the Manhattan district attorney’s prosecution, which focuses on a payment from 2016 and has triggered disputes over jurisdiction, the potential crimes Smith is investigating are recent and unambiguous. Proving intent is a key challenge in prosecuting obstruction. But investigators have evidence— including texts and emails from Trump's former personal assistant— that Trump ignored requests from multiple advisers to return the documents for over a year. They also have evidence that Trump asked his lawyers to release false statements claiming he had returned the documents, and that multiple advisers warned Trump that holding on to them could be illegal… Trump has benefitted from the Manhattan indictment being the first to drop, given that most Americans see it as at least somewhat political. But the former president's legal luck is likely run out if he's forced to head south to D.C. or Georgia.