Jun.19

electoral-vote.com

Dem 51

   

GOP 49

When the (ex-)President Does It, It is Not Illegal

How do Republicans justify Donald Trump's hiding of defense documents? Let us count the ways. There are nearly a dozen of them already. But in the end, they all kind of come down to Richard Nixon's famous remark: "Well, when the president does it, that means that it is not illegal." In effect, Nixon was saying that the law doesn't apply to the president. Now Republicans are expanding that and saying that it doesn't apply to ex-presidents either. A good question to ask them might be: "If Bill Clinton shot and killed Donald Trump, would that be legal?"

But getting back to the original point, how are Republicans justifying Trump violating the Espionage Act? Here are some of the claims they have made:

• Trump is entitled to obstruct: John Yoo, a former deputy assistant AG, said that because Trump was mistreated by the DoJ and FBI, he is entitled to obstruct them. They weren't nice to him so why should he be nice to them? Alan Dershowitz has gone one step further and said that as long as Trump believes that—even if it is not true—he is entitled to refuse to cooperate with people he believes are trying to get him.
  
  
• Declassification: Here, too, Dershowitz says facts don't matter. As long as Trump believes that he declassified documents, he has every right to hold onto them and not turn them over. Of course, at least one of the audio recordings shows that Trump didn't actually believe he declassified the documents, so this is a very weak argument to bring up in court.
  
  
• The Presidential Records Act allows it: Actually, it is just the opposite. The PRA says that all documents related to Trump's duties as president belong to the National Archives, not to the president. One of Trump's lawyers, Christina Bobb, has claimed that the president gets to determine what is NARA's and what is his, but that is not so. At a trial, Special Counsel Jack Smith will simply read the relevant part of the law to the jury.
  
  
• Merely taking the documents makes it legal: Fox News' Jesse Watters has said that the mere act of taking government documents home makes them the president's personal property. He said Bill Clinton did this, so that's that. Actually, there is no evidence that Clinton took anything he shouldn't have and, of course, the act of stealing something doesn't magically make it legal.
  
  
• A former president may hide documents...: This theory has been floating around Fox a bit. It maintains that a former president can take and hide documents as long as he doesn't destroy them. Where did they get this idea? They just made it up. It will not hold up well in court.
  
  
• ...and also destroy them: Jim Trusty, one of Trump's now-former lawyers, went even further and said that since Trump could declassify documents at will, they were no longer national secrets so he could take them home and throw them in a bonfire and it would be legal. Of course, this flies in the face of both the PRA and the Espionage Act, which say the opposite. But since Trusty is now gone, probably this argument won't surface again.
  
  
• Ex-Presidents can ignore the rules: CPAC Chairman Matt Schlapp thought of an interesting defense. He said that Trump was justified in ignoring the rules because the people who made them were all corrupt. In other words, the entire national security establishment going back 100 years or so, through the presidencies of many Republicans, is all corrupt so the rules don't apply any more. Schlapp might want to think carefully about the implications of that argument, and how Democrats might apply it to the jurisprudence coming out of the Supreme Court these days.
  
  
• The classification system is illegal: Vivek Ramaswamy says that the whole classification system was imposed by executive order rather than by statute, so classifications don't have the force of law. First, quite a few people have gone to prison for violating this non-law. Do they all get sprung now? And in any event, the Espionage Act doesn't mention classification because that system came later. It mentions defense documents.
  
  
• Congress can't constrain a former president: Another Trump lawyer, Jesse Binnall, says that even if Congress were to pass a law making a former president subject to the Espionage Act, the Supreme Court might say the law is unconstitutional. Claiming that Trump is innocent because a law Congress hasn't actually passed might one day be found to be unconstitutional is a bit of a stretch, but sometimes lawyers like to think out of the box.
  
  
• No former president should be prosecuted: Yoo has also said that Trump should be left alone because prosecuting him would make future presidents nervous about making tough decisions. There is some truth in that, but maybe the test should be whether the president actually committed a crime, rather than simply making an unpopular decision.
  
  
• It's like a coup: Kimberly Guilfoyle, Trump's daughter-in-law to be, says that having FBI agents execute a search warrant against a former president is like a coup. That's a new definition of "coup." Maybe her creative thinking is what got Gov. Gavin Newsom (D-CA) to marry her. Or maybe it is what got him to divorce her 5 years later.
  

In short, all the defenses are basically just made up out of thin air, but defenders gotta defend. When the case actually comes to court, we suspect few of these will show up, as Jack Smith will be able to shoot them down by telling the jury what matters is the actual law, not what someone feels like or what the law could have been. We suspect that a lot of the defense will have to be attempting to claim the process is improper and the evidence is tainted. It is hard to see what else might work. (V)