Consequences, Accountability, and the Un-Deterrable Donald Trump

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New york, NY - November 8 2018: Protesters take to the streets near times square to march against donald trump in the mueller controversy after sessions got fired. Sign reads: No one is above the law

Donald Trump’s stealing, mishandling, and concealing of US defense secrets is on the Republican Party for refusing to remove him from office when it was clear he was not fit to be president. They had the chance to remove him (twice) but instead shielded him.

This is on them.

New Information about the Search Warrant

Last week the Department of Justice released a heavily redacted copy of the affidavit accompanying the warrant to search Mar-a-Lago. I updated this timeline of the stolen-documents case with the new information. If you want to get caught up, click here to check it out. In a nutshell, Donald Trump stole top-secret defense documents and refused to give them back, so the court approved a search warrant so the government could retrieve them.

The fact that Trump thought he could make off with U.S. military secrets when he lost reelection is weird and creepy.

Trump’s relationship to executive privilege offers a good sense of what we’re dealing with. Executive privilege is the power of the president and other officials in the executive branch to withhold certain forms of confidential communication from the courts and the legislative branch. The idea is that the president should be able to communicate freely with advisors. The privilege is never absolute. There are always occasions when the need for the information outweighs the president’s privacy interests. Moreover, privileges can’t be used to conceal crimes.

Trump and Executive Privilege

On Aug. 24, 2021, the House select committee investigating the Jan. 6 attack on the U.S. Capitol issued a request for documents, including presidential documents housed at the National Archives and Records Administration (NARA). (The Presidential Records Act requires all records generated by the president be housed at the NARA.) The PRA also gives the sitting president final authority over whether to assert executive privilege over presidential documents.

President Joe Biden declined to assert executive privilege and authorized the National Archives to release the records to Congress.

On Oct. 18, 2021, Trump sued to stop the records from being sent to Congress on the grounds that he was asserting executive privilege and that his wishes should outweigh Biden’s because they involved his tenure in the White House.

Trump lost. The court held that if the incumbent president and the former president differ over whether to claim privilege over particular documents, the incumbent president gets the final say because the privilege protects the office of the presidency, not a particular president. Trump appealed. He lost again. He appealed to the Supreme Court, which refused to hear his case, meaning it was over.

So the National Archives sent the presidential records to the House select committee.

But . . . (da dum, da dum) . . . it turns out that Trump was hiding records at Mar-a-Lago, so in fact, the select committee didn’t get all the records.

This spring, when the National Archives and FBI were trying to get the documents back, Trump again claimed executive privilege. His new lawyer, Evan Corcoran, when telling the NARA and FBI why they couldn’t have the documents, made the same arguments that Trump had made in his losing lawsuit. A National Archives official, in a letter dated May 10, patiently explained to Trump why he doesn’t have the right to assert executive privilege.

Trump still refused to turn over the records, so the FBI obtained a search warrant and retrieved the documents.

Even after all of that, last week Trump filed a motion asking the court to appoint a special master to review the seized material on the grounds that they’re covered by executive privilege.

Me = facepalm. There’s no getting through to this guy, right?

The irony is that even if the documents seized were covered by executive privilege – they’re not because Biden gave permission for them to be released – this would mean, by law, they would need to be housed at the NARA. Thus, Trump’s claim last week of executive privilege was an admission that he is in possession of stolen documents because, by law, privileged records belong in the National Archives.

So Trump stole materials and then tried to claim a privilege he doesn’t have—even after courts and others have repeatedly told him he doesn’t have the privilege.

Just for fun, let’s take a look at what Trump filed in court last week

Once in a while, we need comic relief. The filing is here. 

It’s easy to read. In fact, it looks like he wrote it himself. For example, I’ll bet Trump wrote this part:

“President Donald J. Trump is the clear frontrunner in the 2024 Republican Presidential Primary and in the 2024 General Election, should he decide to run.”

He added that his endorsement in the 2022 midterm elections was “decisive” for Republican candidates. (I think he meant the primaries.) And apparently, the FBI should have taken into account that searching his premise would “distress most Americans.” Most? I don’t know about that.

He explains that when his family moved from the White House to Florida, “like most Americans, the move involved boxes. It was done during the day, with the boxes in full view.” The paragraph mentions “movers” three times. (As one of my followers on Twitter asked, ‘Is he trying to throw Allied Van Lines under the bus?”) I thought this was odd. Then I noticed that a heavily redacted search warrant affidavit left unredacted mention of moving trucks:

Then the obvious occurred to me. It’s possible that Trump is accused of having sensitive top secret defense secrets packed and moved by a commercial mover. (These are documents highly regulated as to where and how they can be stored and who can have access.)

We do get the story from his viewpoint. He admits that earlier in the year some of the documents he returned included some he believed were covered by “executive privilege,” which means he shouldn’t have taken them. On May 11, he “accepted service” of a grand jury subpoena. He “determined” that his staff should “search for documents bearing classified markings, even if they had been declassified.” On June 2, he “invited” the FBI to retrieve “responsive” documents. On June 3, Jay Bratt and three FBI agents came. Trump greeted them in the dining room. Before leaving “President Trump’s last words to Bratt and the FBI agents were as follows: “Whatever you need, just let us know.”

So helpful! (He likes calling himself “President Trump.”)

Of course, he didn’t return all the top secret documents, which was why the FBI finally came in with a search warrant to get them.

What he says about Garland’s press announcement is so deluded that I can’t even. Because Garland doesn’t mention the message Trump passed along to him—how his supporters were so angry about the search that they had to find a way to bring the temperature down—he concludes from Garland’s speech that the decision to search Mar-a-Lago was to diminish the “leading voice in the Republican Party, President Trump.” 

He also makes an “everyone was mean to me” argument. No kidding. This was a heading in his brief:

What he’s doing, actually, is trying to set up a political persecution defense. The problem is that the appropriate time to do that is at trial, not in the pre-indictment stage.

He also mixes in a Fourth Amendment argument, claiming that the search violated his Fourth Amendment rights. Here’s the problem with that: If a defendant’s Fourth Amendment rights are violated, the remedy is to file a pre-trial motion to suppress the evidence. This happens after the indictment. Nobody gets a special master if they think a Fourth Amendment error occurred.

A question from the comments:

Basically, the court has called for a response from the DOJ and set a hearing for September. I suspect the issue will be moot soon because the DOJ has indicated a review of the documents taken from Mar-a-Lago has already occurred. What Trump should have done is file a motion for a preliminary injunction on Aug. 8, the day of the search, if he really wanted to prevent material from getting to the FBI. (I generally don’t like trying to predict what will happen at a hearing because you never really know what a judge will do. They often get it wrong, which is why appeals sometimes succeed.)

Trump’s attitude toward executive privilege is similar to his attitude toward the election fraud claims

No matter how many times Trump lost in court over his election fraud claims, and no matter how many times he was told by people like his own Attorney General Bill Barr and White House counsel that there was no fraud and he lost the election, he insisted that he won the election and there was widespread fraud.

Why Consequences Don’t Matter

This is from one of the TV lawyers I talked about in last week’s blog post:

“Trump has never suffered any actual consequences” or the common corollary, “Trump keeps breaking laws because the legal system is corrupt or failing” are what Yale professor Timothy Snyder calls an “Internet trigger” and I’ve called a “rage-inducing simplification.”

Simplifications take a complex situation and boil it down to something that seems true and perhaps has some truth in it, but is not true. Rage-inducing simplifications trigger rage. Snyder defines an Internet trigger as something a person sees on the Internet, feels triggered by, and repeats. (For more on that, and why these kinds of untruths are a danger to democracy, see this post.)

The implication is that Trump breaks laws because there haven’t been enough consequences. This in turn implies that (1) more consequences will solve the problem and (2) Trump breaks laws because of a failure in the criminal justice system. Like this:

A sampling of the actual consequences Trump has suffered (this is not a complete list):

The problem isn’t that there are no actual consequences. The problem is how Trump (and his enablers) respond to them.

When Richard Nixon was about to be impeached and the evidence against him was overwhelming, he resigned. When Trump was impeached and the evidence was overwhelming, the Republican Party shielded him and lied for him.

Most people, when they lose court cases, drop their claims. Trump loses court cases and literally ignores the rulings.

Had an organization run by either Hillary Clinton or Barack Obama been indicted for fraud, that would be the end of their careers because the Democratic Party doesn’t lie and shield lawbreakers.

When first-term presidents lose their reelection bid, they generally step aside and allow new leadership to take over the party. Not Trump.

Trump received the Republican nomination in 2016 despite a history of violating rules and norms. He was elected president after it was revealed that he had paid off a porn star for an affair he had while his third wife was pregnant and a recording was released of him saying, “When you are a star, they let you do it. . grab ‘em by the pussy.” While he was president, he was shielded by a major political party and a well-oiled propaganda loop. Since leaving office, he has solidified his grip on the Republican Party.

Yet people believe that Republicans are cool with lawbreaking and insurrections because there are not enough consequences:

In addition to the consequences Trump personally suffered, here’s a partial list of what his buddies have been through:

It’s almost as if getting charged with crimes makes Trump associates even more likely to commit crimes.

This article originally appeared on Teri Kanefield’s blog.

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Teri has written novels, short stories, nonfiction for both young readers and adults, and lots of legal briefs. She is currently working on a book on disinformation to be published by Macmillan Publishers. Her political commentary has appeared on the NBC Think Blog and Her articles and essays have appeared in publications as diverse as Education Week, Slate Magazine, and Scope Magazine. Her short fiction has appeared in the American Literary View, The Iowa Review, and others. For twelve years she maintained a private appellate law practice limited to representing indigents on appeal from adverse rulings. She believes with the ACLU that when the rights of society's most vulnerable members are denied, everybody's rights are imperiled. She also believe with John Updike that the purpose of literature is to expand our sympathies. Teri lives with her family on the beautiful central coast in California.

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