Even if convicted, Trump could still run for President. It is anomalous that many states prevent felons from voting but not from standing for election
By Anil Madan
By the time you read this, everyone who hasn’t been taking a Gulliver-style nap under a rock will know that Donald Trump has been arraigned in a United States federal district court in Miami on an indictment by a federal grand jury acting under the auspices of Special Counsel Jack Smith. Let us review the charges, then some of the reactions to the indictment and finally, I’ll give you Bwana’s take.
First, a brief overview of the charges. You can read the full indictment here: full.pdf (nyt.com)
In summary, the indictment begins with charges of willful retention of highly classified US government documents containing the most sensitive and secret information on US nuclear programs; defense and weapons capabilities of both the US and foreign countries; potential vulnerabilities of the US and its allies to military attack; and plans for retaliation in case of an attack. It goes on to allege that Donald Trump knew that he shouldn’t have these documents in his possession, that he showed them to persons without security clearances, that he lied about having the documents in his possession and conspired with others to thwart the government’s efforts to retrieve the documents to the point of attempting to get employees and even his attorneys to make false statements about the documents. These latter actions were designed to avoid compliance with the subpoena for the documents and amount to obstruction of justice. All the crimes charged are felonies.
Two examples of facts alleged are:
In July 2021, at Trump National Golf Club in Bedminster, New Jersey (The Bedminster Club), during an audio-recorded meeting with a writer, a publisher, and two members of his staff, none of whom possessed a security clearance, TRUMP showed and described a plan of attack that TRUMP said was prepared for him by the Department of Defense and a senior military official. TRUMP told the individuals that the plan was “highly confidential” and “secret.” TRUMP also said, “as president I could have declassified it,” and, “Now I can’t, you know, but this is still a secret.”
and, after the grand jury issued a subpoena in March 2022 requiring Trump to turn over all documents with classification markings, TRUMP endeavored to obstruct the FBI and grand jury investigations and conceal his continued retention of classified documents by, among other things:
- Suggesting that his attorney falsely represent to the FBI and grand jury that TRUMP did not have documents called for by the grand jury subpoena,
- directing defendant WALTINE NAUTA to move boxes of documents to conceal them from TRUMP’s attorney, the FBI, and the grand jury,
- suggesting that his attorney hide or destroy documents called for by the grand jury subpoena,
- providing to the FBI and grand jury just some of the documents called for by the grand jury subpoena, while claiming that he was cooperating fully, and
- causing a certification to be submitted to the FBI and grand jury falsely representing that all documents called for by the grand jury subpoena had been produced while knowing that, in fact, not all such documents had been produced.
On January 17, 2022, nearly a year after Trump left office and after months of demands by the National Archives and Records Administration (NARA) that he must return all presidential records, Trump produced 15 boxes which contained 197 documents with classification markings. In June 2022, after the subpoena was served, Trump’s attorney produced 38 more documents with such markings. On August 8, an FBI search of Mar-a-Lago pursuant to a search warrant retrieved 102 more documents with classification markings.
Trump has, as Trump is wont to do, gone ballistic over the indictment. He has referred to Special Counsel Jack Smith as a “deranged psycho” and a “Trump hater.” As might be expected, he has accused the Biden administration of weaponizing the Department of Justice. He has proclaimed himself an innocent man. His most fervent “defense” is that the DOJ did not go after Hillary Clinton or the Joe and Hunter Biden. He does not deny that he took the classified documents or explain the discrepancy between his earlier statements that he had declassified the documents. Indeed, he is alleged to have admitted that once he left the White House, he no longer had that power.
Most importantly, Trump tries to make a subtle distinction that what he did is not a violation of the Espionage Act but comes under the rubric of the Presidential Records Act (PRA). The subtle point he is trying to make is that under the PRA, a former President is entitled to have access to documents concerning his time in office for legitimate purposes such as writing his memoirs. The problem with this argument is that former Presidents are not entitled to unfettered access to classified information but must follow stringent security procedures and protocols when handling such documents. Trump did not follow any of the procedures or protocols. It is also significant that in proffering this excuse, Trump ends admitting at least to unlawful possession and retention of classified documents.
In a troublesome echo of his call for his supporters to show up at the Capitol on January 6, 2021, Trump exhorted his supporters to show up in Miami last Tuesday. His supporters had no colorable reason to be in Miami on that day other than to demonstrate and make trouble at Trump’s behest. His exhortation turned out to be a flop.
Special Counsel Jack Smith’s Reaction:
Special Counsel Jack Smith made a televised statement about the indictment. The salient points he made are:
- Our laws that protect national defense information are critical to the safety and security of the United States and they must be enforced. Violations of those laws put our country at risk.
- We have one set of laws in this country, and they apply to everyone. Applying those laws. Collecting facts. That’s what determines the outcome of an investigation. Nothing more. Nothing less.
- The prosecutors in my office are among the most talented and experienced in the Department of Justice. They have investigated this case, hewing to the highest ethical standards. And they will continue to do so as this case proceeds.
- I would like to thank the dedicated public servants of the Federal Bureau of Investigation, with whom my office is conducting this investigation and who worked tirelessly every day upholding the rule of law in our country. I’m deeply proud to stand shoulder to shoulder with them.
Even before the indictment was released to the public, Trump and his team tried to seize the narrative. And they used the indictment as a springboard to seek more donations.
Jack Smith and the DOJ seemed determined not to let Trump and his operatives steal the moment and control the narrative. In fact, Smith urged everyone to read the indictment. Good luck with that. This is America, the land of the soundbite. Heaven forfend that we should actually read the details before making up our minds. On the other hand, if you have time, please do read the indictment. If the allegations are true, it is a compelling case for obstruction of justice.
Reactions from Republicans and Trumpkins:
Ever since he rode down the escalator in Trump Tower in 2015, Donald Trump has had a mystical quality about him that allows him to mesmerize his followers and caramelize their impulses into a glaze of hatefulness. As he appeals to the basest instincts of his followers—do they have any other—the so-called Republican leaders cower, fearful of antagonizing his base.
So, it was that Governor Ron DeSantis of Florida (DeSenseless as I like to call him) chirped about weaponization of the DOJ and promised that if he is elected President, he will reform that department. How he would do that, he did not say. House Speaker Kevin McCarthy likewise engaged in a shameful attack on the Biden administration for indicting Trump. The truth of the matter is that Biden has no say in the matter and, as we know, Attorney General Garland had appointed a Special Counsel to conduct the investigation and decide whether to indict or not—subject, of course, to final approval of the AG.
Republican congressional representatives likewise wasted no time in rushing to line up with ready-to-peck-lips behind Trump’s derriere. Of course, given the lapsed time from when the indictment was released to the public to their comments, they clearly had no time to have read the 49-page indictment. Of course, that these so-called experts lack knowledge of a subject is never an impediment to the expression of their “learned” opinion on it. Indeed, some made their comments even before the contents of the indictment were known.
There seems to be this mistaken notion that if Trump is not the nominee, his base will automatically turn to support whoever has most sucked up to Trump. That remains to be seen. So, one candidate for the Republican nomination pledges to pardon Trump if he is convicted.
Former Vice President Mike Pence who was the subject of the January 6 chants “Hang Mike Pence” at first said he was troubled by the indictment of a former President. Now that he admits having read the indictment, he states that he cannot support the kind of conduct alleged but Trump is entitled to a fair trial.
Former Arkansas Governor Asa Hutchinson who is in the race for the Republican nomination in spirit, if not assigned a lane in which to run, declared: “While Donald Trump is entitled to the presumption of innocence, the ongoing criminal proceedings will be a major distraction. This reaffirms the need for Donald Trump to respect the office and end his campaign.”
Trump’s former national security adviser John Bolton tweeted: “Donald Trump has proven himself incapable of meeting the Constitutional obligation to take care that ‘laws be faithfully executed. He’s clearly unfit to lead. A second term would simply result in more criminal acts. Drop out now.”
Kari Lake, most notable for losing the gubernatorial election in Arizona threatened Jack Smith and Joe Biden, couching her statement as a Public Service Announcement. Then Lake issued a pledge to protect President Trump against prosecution, and to protect him with 75 million other people who, she implied, as card-carrying members of the NRA, would use firearms if necessary.
It is too early to pay attention to polls, but a recent RealClearPolitics’ average of polls shows Trump registering 53.2% as leader for the Republican nomination followed by DeSantis at 22.4%, Nikki Haley at 4.4%, and Hutchinson at just 0.4% shows how far removed the election, still seventeen months away, is from moving the public needle.
Reactions of Democrats and the Liberal Media:
It is fair to say that the reaction of Democrats and many in the liberal media has been one of restrained exultation if exultation can ever be described as restrained. That Trump’s own words are recited repeatedly in the indictment to tell the story of his lies, coverups, and attempts to conceal documents from the FBI and NARA, and to get even his lawyers to lie, confirms their long-held belief that Trump is evil incarnate.
Aside from my comments about the actions of the Republicans, disgust that I could not refrain from expressing, I have two thoughts. First, there is the presumption of innocence. Second, there is a deep sense that this is a sorry and tearful moment for this nation. If Trump said and did what is alleged in the indictment, regardless of whether he is technically guilty, this is a sad, sad moment for our country.
As the indictment recounts, while he was President, Trump made many pronouncements about the need to protect our national security against mishandling of classified information and he promised to enforce those laws. These were hollow and empty promises. Aside from that, his willful disregard for the truth in dealing with a subpoena and active prevarications, insisting that he had turned over all classified documents when he hadn’t, and claiming that he had somehow magically declassified the information when he clearly did not follow the procedures for doing so, leave one cold.
This presumption of innocence is a funny thing. NO, I am not saying that Trump did not do all that is alleged in the indictment. The question is whether he is guilty under the law. Given what I have read in the indictment, I think it highly likely that he will be found guilty of obstruction of justice, and of willfully concealing that he had classified documents. But, on the charge or willful retention of classified documents, I have great difficulty finding any harm to the nation. Yes, the indictment alleges that these documents contained highly classified information vital to the nation’s security and that its disclosure could have put people’s lives in danger. But Trump was entitled to know what was in the documents when he was President. He still had that knowledge when he left office, so if he looked at the documents again, sure there is a technical violation, but what is the harm? Knowledge cannot be undone. If he did not show the information to others who compromised national security and so long as he did not try to sell the information to third parties, it is difficult to get one’s knickers in a twist.
On the other hand, make no mistake. Whether technical or not, these types of violations involving compromise of classified information have resulted in stiff prison sentences for offenders. But then, none of them was a former president.
It is also possible that under the Presidential Records Act Trump could have access to such documents. However, such access is under strictly controlled conditions. Trump’s attorneys will have to find a compelling legal justification for this kind of defense to succeed.
Trump’s claims of double standards is nonsensical. None of the others he mentions, Biden, Pence, or Hillary Clinton, was involved in the willful secretion of classified information or in obstructing justice.
What I am getting at is that most of the indictment relates to the kind of charges that produced no real harm and so he will never be incarcerated for those violations. Perhaps he will be confined to his residence at Mar-a-Lago. The obstruction of justice and conspiracy to conceal classified documents are far more serious charges. Again, whereas I think it highly unlikely that he will be jailed, I can see an extended home confinement sentence.
The notion of innocent until proven guilty is illustrated by a case decided about ten days ago by the Supreme Judicial Court (SJC) of Massachusetts. After a jury trial, the defendant was convicted of murder in the first degree on theories of deliberate premeditation and felony-murder, with aggravated kidnapping as the predicate felony, in connection with the disappearance of the victim. The defendant contended on appeal, and the Massachusetts prosecutor conceded, that, because at the time of the offense the felony of aggravated kidnapping did not exist, he could not have been convicted on the theory of felony-murder in the first degree. The SJC agreed and vacated the conviction based on felony-murder but affirmed the conviction of premeditated murder. So, it is possible for a defendant to have done precisely what is charged but not be guilty of the technical offense.
I will add two concluding thoughts.
First, as despicable as Trump’s willful lies in evading the subpoena, and in urging his people to lie and thwart the subpoena and the FBI, the conduct of Speaker McCarthy, scores of Republican congressional representatives, and people like Kari Lake, are even more despicable. It should be unthinkable for a presidential candidate to stoop so low as to promise a pardon for someone convicted of violating national security and obstruction of justice by willful conduct such as is alleged against Trump. Seldom has there been so much egg spread on their own faces by so many. In turn, these reckless statements have spurred an outpouring of calls by Trump supporters for an uprising to defend him with violence if necessary.
Second, even if convicted, Trump could still run for President. It is anomalous that many states prevent felons from voting but not from standing for election.
The shadow of January 6 looms once again.
Mauritius Times ePaper Friday 16 June 2023
65 years ago Mauritius Times was founded with a resolve to fight for justice and fairness and the advancement of the public good. It has never deviated from this principle no matter how daunting the challenges and how costly the price it has had to pay at different times of our history.
With print journalism struggling to keep afloat due to falling advertising revenues and the wide availability of free sources of information, it is crucially important for the Mauritius Times to survive and prosper. We can only continue doing it with the support of our readers.
The best way you can support our efforts is to take a subscription or by making a recurring donation through a Standing Order to our non-profit Foundation.