The Trump Indictment

Some thoughts on the devastating case against the former president, and the "But Hillary" defense.

Last week the Justice Department released the details of its indictment against former president Donald Trump. What we learned was more damning and appalling than just about anyone expected.

Trump, as it stands, is facing 37 charges. 31 are related to the willful retention of national defense information. That information included defense and weapons capabilities of the United States and other countries, details on our nuclear programs, potential vulnerabilities of our country and other countries to a military attack, and retaliation plans in the event of a foreign attack.

The remaining counts relate to Trump’s response to the government’s efforts to retrieve the documents, including his failure to comply with a legal subpoena. There’s one count of conspiracy to obstruct justice, three of concealing or withholding documents in a federal investigation, and two of making false statements in a scheme to conceal the continued possession of classified documents.

Notably, none of the 37 counts relate to Trump’s mishandling of the documents (his taking of them in the first place, and later how he stored them). In other words, if he had just handed the documents over, in their entirety, when asked (as any normal person would have), he would not have been charged with any of these crimes.

For those still wondering (or pretending to wonder) how Trump’s actions are any different than those of Joe Biden and Mike Pence, in regard to their possession of classified documents, there’s your answer. That is, unless something unexpected comes out of the Biden investigation; the Pence inquiry has already been closed.

Though not reflected in the charges, it’s tough to gloss over just how Trump chose to store the documents he improperly took. Photographs in evidence reveal that the highly sensitive material was stacked and laying around haphazardly in ballrooms, bathrooms, and storage rooms at Mar-a-Lago (where at least two Chinese nationals have been arrested for trespassing since Trump left office).

But let’s stick with the indictment. Accompanied with surveillance footage, text messages, and audio recordings of Trump himself, it details how the former president, working with Navy veteran Walt Nauta (a former White House valet and now personal assistant to Trump), went to great lengths to prevent authorities from finding the dozens of boxes of documents.

Trump lied about having them. He moved them and hid them. He tried to get his lawyers to destroy evidence of them. He even tricked his attorney into lying about them under oath.

When Trump wasn’t busy hiding classified material from the federal government, he was showing it off to friends and associates — individuals without security clearances — as if it were a baseball card collection. One of those individuals, a writer working on Mark Meadows’ book, actually recorded Trump on tape admitting that he had never declassified the material when he was president — a direct contradiction to what Trump has claimed repeatedly, without proof, since the initial FBI search of his home.

Suffice to say, things aren’t looking very good for the former president, with even his old Attorney General and Trump-friendly legal analysts on Fox News agreeing that the indictment and evidence against him as absolutely devastating. Even Trump’s own lawyers bailed on him after the indictment was unsealed, and will likely testify against him down the road.

Unsurprisingly, Trump continues to insist he did nothing wrong. He’s vowing to remain in the presidential race, which he assuredly entered as early as he did in hopes of avoiding the very types of charges he now faces. Also unsurprisingly, many of Trump’s loyal supporters are defending or dismissing his actions, nonsensically screaming “Banana Republic!” and offering up what they believe to be an airtight rebuttal to the indictment: “But what about Hillary?”

It’s become a comical, catchall retort over the years, but in this instance I suppose the whataboutism is at least worth exploring. After all, former Secretary of State Hillary Clinton had her own scandal with classified material, and she famously escaped prosecution. Isn’t that a double-standard?

Well, it’s certainly something, but I wouldn’t call it a double-standard, at least not when comparing what she did with what Trump did. Hear me out…

I’ve stated many times over the years that I believe Clinton should have been prosecuted for mishandling classified information, just as lower-tier government officials like Sandy Berger and David Petraeus were. But FBI director James Comey chose not to, despite saying that Clinton and her team “were extremely careless.”

Comey’s rationale was the lack of precedent for the DOJ prosecuting such a case in which the worst provable infraction was negligence. He stated:

“In looking back into our investigations into the mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of information 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. We do not see those things here.”

Intention and obstruction are key terms there.

Again, I think Comey was wrong. The standard he described was not a legal one, but something more along the lines of prosecutorial discretion — his own. Also, it’s very difficult to buy the notion that Clinton’s misconduct wasn’t intentional, especially considering the manner of the mishandling: using her own server, against protocol, for sending and receiving classified information.

Is it possible that a Secretary of State was truly that stupid and unwittingly reckless? Comey’s answer was effectively yes, or perhaps he didn’t see compelling enough evidence to the contrary adequately prove intent. Regardless, it was always a weak position, defined by a personal standard rather than a legal one, which the political right was absolutely correct to condemn. An individual of less stature or political significance than Clinton, under the same circumstances, assuredly would have been prosecuted. That in itself presents a double-standard, but that’s not what we’re talking about with Trump.

From what’s detailed in the Trump indictment, the former president’s unlawful intent was glaringly obvious, front-and-center in one piece of evidence after another. So were his efforts to obstruct justice. His misconduct went well beyond Clinton’s, and again, Trump’s not even being charged with his mishandling of the documents. As far as that misconduct goes, he’s being given the same pass that Clinton unfortunately was. The counts Trump faces are all related to his extraordinary efforts to willfully retain the documents, after they were identified to be in his possession.

It’s worth restating that had he simply returned what he had taken at the time he was asked (or even at subsequent times), he could have avoided all of this. Instead, he played games and further broke the law (allegedly) for well over a year.

You don’t have to like what happened with Clinton (I sure don’t) to recognize that there are big differences between her situation and Trump’s. If your argument is that because Clinton escaped charges for misconduct related to classified material, no one should ever be charged for anything (including much worse misconduct) related to classified material, I dare say that your argument is completely ridiculous. It would be like saying that if a likely guilty individual escapes robbery charges, no one should ever be charged with armed robbery.

Such logic falls to pieces the moment you view it under any prism other than partisan politics. Yet, it’s the logic I expect we’ll hear much more of going forward, because thus far, it appears to be the only defense Trump and his loyalists have.