Frivolous Trump Arguments against the Mar-a-Lago Indictment

By Andrew C. McCarthy

Monday, June 12, 2023

 

People in their right minds who care about the country could never defend the factual details of Donald Trump’s conduct, as alleged in the federal indictment unsealed last week.

 

No one is going to say, “It makes total sense to me that he was storing the crown jewels of national defense — such as how other countries could go about attacking American military vulnerabilities — next to the toilet at a beach club.”

 

No one is going to say, “I can certainly see why Trump would refuse to return such top-secret intelligence to government officials, who pleaded with him for over a year to return it before finally resorting to coercive measures.”

 

No one is going to say, “It was so vitally important for Trump, who had no official government duties in his post-presidency, to retain possession of top-secret government intelligence reports that it made sense for him to defy a subpoena and mislead a grand jury in order to keep them.”

 

No one is going to say, “If a Democratic former president had done what Trump did, I’d be fine with that.”

 

Moreover, no one can credibly say that the Biden Justice Department has manufactured the case. You can certainly argue that special counsel Jack Smith has been heavy-handed in charging it. There was no need, for example, for Smith to indict 31 counts of unlawfully and willfully retaining national-defense information (310 years of prison exposure); he could instead, for example, have charged one documents count, with the jury instructed that illegal retention of any one of the 31 would be sufficient for conviction. That would have provided ten years of potential incarceration just for unlawful document retention — more than enough, especially for a 76-year-old-man who is also facing obstruction charges. As we noted when Alvin Bragg pulled an even more flagrant stunt along these lines (turning what should, at best, have been one misdemeanor charge into 34 felonies), Justice Department guidance admonishes prosecutors to avoid parsing criminal conduct into multiple felonies that can be stacked to create the impression of a more serious crime.

 

In the scheme of things, though, overcharging is a quibble. What Smith has outlined is, incontestably, serious criminal conduct. If Trump is convicted of multiple counts, the stacking problem will be mitigated by the sentencing guidelines (which guard against this prosecutorial abuse).

 

Meantime, it is clear that the Biden Justice Department did not concoct this case out of whole cloth: The damning evidence comes from (a) documents Trump does not (and could not) deny having, and (b) pro-Trump people, such as his lawyers, who were trying to help him get out of the mess he made for himself, and whom he rewarded by deceiving them and dragging them into his machinations — making it look like they were the ones who misled the investigators when, in fact, they were just acting on what he told them.

 

Since Trump’s conduct is indefensible, his apologists have adopted the familiar tactic of making bombastic claims that the prosecution is so fundamentally unfair and un-American that the facts don’t matter. Remarkably, the people asserting these claims never tire of pointing out that Trump is not merely a former president but a current presidential candidate. Putting aside whether he is guilty of crimes (he appears to be, but he’ll get his day in court), what could possibly be more relevant to his fitness for the presidency than the facts of the case?

 

 

Put another way, is the Trump position that, if the Biden Justice Department weren’t prosecuting him, it shouldn’t matter to us whether he was reckless, or worse, in handling the nation’s most critical defense secrets? Is that the Trump position about the Biden family? That if there is some technically legal “consulting arrangement” excuse for the payments, or if there is some other quirk that makes criminal prosecution too difficult, then we should just ignore that the Democratic president’s family took millions of dollars from corrupt and anti-American regimes in exchange for his political influence?

 

In any event, the attacks on the prosecution — in lieu of trying to justify Trump’s malfeasance — are very weak. Some, laughably so. I’ll address a number of them in posts over the next couple of days, starting with the most popular one: The claim that classified intelligence reports generated by the Defense Department and U.S. spy agencies, for which the American taxpayer expends hundreds of billions of dollars per year, are somehow the “personal records” of Donald J. Trump under the Presidential Records Act.