June 11, 2023
All weekend, Trump supporters have flooded media channels with accusations that President Joe Biden has weaponized the Department of Justice to use as a political cudgel against former president Trump, whom they characterize as the front-runner for the 2024 Republican presidential nomination.
On Thursday the Department of Justice indicted Trump on 37 counts of hanging onto classified national security documents, deliberately hiding those documents from his lawyers and the government after a subpoena, lying about them, and showing them to people without security clearances and without any need to know about them.
Trump and his loyalists insist the indictment makes the United States a “banana republic,” by which they appear to mean a country with a corrupt ruling elite that uses the machinery of government against political opponents (though the historical meaning of that term actually is much more complicated). Sometimes in the same breath they call for arresting members of the Biden administration in retaliation; on the Fox News Channel on Friday, personality Greg Gutfield added First Lady Jill Biden as a potential target after Jesse Watters called for arresting “all of them, [former House speaker Nancy] Pelosi, too.”
There are a number of problems with their characterization of what is going on.
First of all, Biden’s Department of Justice has operated as it is supposed to: independently. While Trump apparently tried to use the department for his own political ends—we learned just last month, for example, that the Department of Justice kept an investigation of the Clinton Foundation open for almost Trump’s entire term, although prosecutors thought the rumors about the foundation were bogus from the start—Biden has gone out of his way to emphasize that he will not interfere with the Justice Department.
To underline that independence, after Trump announced his candidacy for president last November—an early announcement many thought was an attempt to avoid criminal prosecution—Attorney General Merrick Garland appointed a special counsel to oversee the two federal investigations that touched on the former president, thus deliberately moving those investigations outside the department. The special counsel is Jack Smith, and those investigations are the one into the attempt to overturn the results of the 2020 presidential election and the documents case currently in the news.
Still, the indictment came not from Smith, but from a federal grand jury of ordinary American citizens in Florida who reviewed evidence and determined that there was probable cause to believe that Trump committed crimes and should be tried for them. Trump’s defenders are trying to blur this reality by saying it was Biden who charged Trump, when it was really the members of a grand jury.
Trump supporters’ evidence for Biden’s corruption is that the Justice Department has indicted neither President Biden nor former secretary of state Hillary Clinton for what they claim are similar offenses. (It hasn’t charged Republican former vice president Mike Pence, either, but they are not talking about that.) The crucial difference in all three of those cases is that Biden, Clinton, and Pence did not try to hide the documents found in their possession and they cooperated fully with the Department of Justice to return them. (In addition, in Clinton’s case, most of the 110 emails that contained classified information did not bear classified markings.)
As Devlin Barrett of the Washington Post notes, Trump was not charged for illegally keeping any of the 197 documents he returned. He was charged only for ones he kept, lied about, showed to other people, and hid.
Republicans who are trying to pick up Trump’s voters, including Florida governor Ron DeSantis, are not defending Trump but are instead trying to argue that the Democrats are discriminating against Trump. “Is there a different standard for a Democrat secretary of state versus a former Republican president?” DeSantis asked.
That line of reasoning is swaying Republican primary voters, 88% of whom, according to a CBS News poll, say the indictment was politically motivated, although 24% of them agree that the loose handling of the documents was a national security risk. Trump and key supporters are playing to that base, using thinly veiled calls for violence. Meanwhile, Republicans who are likely hoping this will sink Trump are either dodging questions about the issue or, like Senate minority leader Mitch McConnell, remaining steadfastly silent.
But for all the focus on the politics of this moment and the apparent attempt to rally the Republican base to violence, this is a legal case. Trump is accused of serious crimes that endangered—and likely continue to endanger—our national security, which means the safety of every American.
His alleged criminal activity endangers the operations of the Central Intelligence Agency, the Department of Defense, the National Security Agency, the National Geospatial Intelligence Agency (in charge of imagery, maps, and intelligence concerning them), the National Reconnaissance Office (in charge of space-based surveillance and reconnaissance), the Department of Energy (nuclear weapons), and the Department of State and Bureau of Intelligence and Research.
It is notable that the two Republican presidential candidates who have served as U.S. attorneys—Chris Christie and Asa Hutchinson—have both spoken out against Trump over it. So has Trump’s former attorney general William Barr, who told Shannon Bream of the Fox News Channel today: “I think the counts under the Espionage Act, that he willfully retained those documents, are solid counts… I do think we have to wait and see what the defense says, and what proves to be true, but I do think that…if even half of it is true, then he’s toast. I mean, it’s a very detailed indictment, and it’s very, very damning.”
Trump is reportedly having trouble finding lawyers to represent him in this matter, with Marc Caputo of The Messenger reporting today that one federal criminal defense lawyer he contacted in the Southern District of Florida said: “The problem is none of us want to work for the guy…. He’s a nightmare client.”
While committed Republican partisans seem to believe Trump is a victim, according to the CBS News poll, 38% of likely Republican primary voters do, in fact, believe Trump endangered our security—and national security, after all, is the primary job of the president.
Smith said on Friday that the department would seek a “speedy trial,” and if that indeed happens, the American people will hear Trump’s own lawyers and aides—for all the witnesses are his own hand-picked team members—testify under oath about Trump’s behavior. Under similar conditions, the testimony of Trump’s people before the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol effectively countered Trump’s propaganda. That Republican leaders see Trump as vulnerable is evidenced by how many candidates are already in the presidential race.
The question is how much damage the fight for control will do to the Republican Party, especially in light of the fact that Smith’s other investigation, the one into the attempt to overturn the results of the 2020 presidential election, has not yet been concluded. There is reason to suspect those congress members involved in that effort might have been spooked by just how thorough the investigation of the documents case turned out to be.
Guided by President Biden, the Democrats are refusing to comment on the indictment, likely in part to undermine the argument that it is about politics and also because they recognize that many Americans are just tired of drama.
Overall, though, they seem determined to redirect people’s attention to the reality that the Biden administration and the Democrats are actually governing according to the principles of a democracy. Frustrating as this tactic is to partisans, scholars who study how to restore democratic norms in a faltering democracy suggest that emphasizing those norms is crucial.
—
Notes:
https://www.cbsnews.com/news/cbs-news-poll-most-see-security-risk-after-trump-indictment/
https://www.nytimes.com/2023/05/22/us/politics/fbi-clinton-foundation.html
https://www.justice.gov/d9/press-releases/attachments/2022/11/18/2022.11.18_order_5559-2022.pdf
https://www.npr.org/live-updates/trump-indictment-documents-grand-jury
https://www.npr.org/2022/11/15/1137052704/trump-2024-president-campaign
https://d3i6fh83elv35t.cloudfront.net/static/2023/06/trump-indictment.pdf
https://www.nytimes.com/2023/06/08/us/politics/jack-smith-special-counsel-trump-indictment.html
https://www.justice.gov/opa/speech/special-counsel-jack-smith-delivers-statement
https://www.washingtonpost.com/politics/2023/06/10/trump-indictment-speeches-georgia-north-carolina/
https://www.factcheck.org/2016/07/a-guide-to-clintons-emails/
It will be interesting to see when Jack Smith completes the investigation into the election/insurrection, how many Congressional & Senate members get (hopefully) removed from their positions.
Robert Hubbell has a great, reassuring Substack this morning: "Don't freak out about Judge Cannon" (link below). I think the key here is for all of us (certainly for me!) not to freak out about ANY of this. tfg's allies are going to claim "witch hunt" and "targeted prosecution" and get hysterical and maybe get violent. We focus on Biden's and Democratic accomplishments and goals, we reiterate the differences in the situations and the seriousness of the charges against tfg, we quote Republicans like Barr about the seriousness of the offenses, and we work to defeat tfg, DeSaster, and all authoritarians at the polls and in every way.
tthttps://roberthubbell.substack.com/p/dont-freak-out-about-judge-cannon?utm_source=profile&utm_medium=reader2