Latest revelations from the special counsel’s probe into ex-President Donald Trump’s handling of classified documents deepen a sense that a grave political moment is approaching.
An exclusive CNN report that appears to point to a core weakness in Trump’s case is reinforcing the possibility that the 2024 presidential contender is in a heap of legal trouble.
Possible evidence that Trump knew that his claims that he could simply declassify material on a whim were false highlight his characteristic belief that laws and codes of presidential behavior do not apply to him. This is a factor that made his White House term a daily test of America’s democracy and legal system and may become even more acute if he wins the 2024 election.
The latest glimpse into special counsel Jack Smith’s investigation also shows that while any charges against Trump for potential violations of the Espionage Act and obstruction of justice might be justified in a purely legal context, they would come with a high level of responsibility to explain to the public why such a step in a potentially complex case was merited in the charged atmosphere of a presidential election.
On the one hand, there is nothing more sacred than protecting the country’s secrets, especially those that could harm allies, help US enemies and endanger covert operatives. But the proposition that inside Washington arguments about classified material represent a priority for millions of voters is yet to be tested.
And fierce controversies still raging around Trump over the 2016 election show how toxic campaign season probes can be to American unity and US political and judicial institutions – all of which sharpens the need for a strong national interest justification for any prosecution.
National Archives and Trump again at odds
The exclusive report by CNN’s Jamie Gangel, Zachary Cohen, Evan Perez and Paula Reid is another serious sign of Trump’s potential legal exposure in the documents case — one of a flurry of investigations that include Smith’s examination of the ex-president’s role ahead of his supporters’ attack on the US Capitol on January 6, 2021, and a separate probe by a local district attorney into his effort to overturn Joe Biden’s election win in Georgia. Trump has already been indicted in Manhattan over alleged business irregularities related to a hush money payment in 2016.
This image contained in a court filing by the Department of Justice on August 30, 2022, and partially redacted by the source, shows a photo of documents seized during the FBI search of former President Donald Trump's Mar-a-Lago estate. - Department of Justice
CNN reported that the National Archives plans to hand 16 documents over to the special counsel that show Trump knew the correct procedure for declassifying such material. This could be significant because it gets to the question of whether Trump had criminal intent, a building block of any case against him. If there is evidence that the ex-president knew he couldn’t just declassify documents by taking them away from the White House – or even with a private thought as he once suggested – his defense on the issue of records stored at his Mar-a-Lago home in Florida becomes more difficult.
In a May 16 letter obtained by CNN, acting Archivist Debra Steidel Wall wrote to Trump – “The 16 records in question all reflect communications involving close presidential advisers, some of them directed to you personally, concerning whether, why, and how you should declassify certain classified records.”
In a CNN town hall event last week, Trump falsely claimed of top-secret documents: “By the way, they become automatically declassified when I took them.”
But former Trump White House lawyer Ty Cobb told CNN’s Erin Burnett on Wednesday that the latest CNN reporting surrounding the National Archives was a sign that Smith was taking steps that could signal he may soon move against Trump.
“I think this is ‘i’ dotting and ‘t’ crossing. I think that this case is ready to go,” Cobb said.
“The simple fact is there is a process … and (Trump) totally ignored that and believes that the mere fact he took them declassifies (the documents). That is not the law.”
Still, Trump’s attorney, Jim Trusty, said on CNN on Wednesday that Trump had done nothing wrong and argued that as president he previously enjoyed substantial powers to declassify documents, in a possible preview of any future courtroom defense.
“At the end of his presidency, he relied on the constitutional authority as commander-in-chief which is to take documents and take them to Mar-a-Lago while still President as he was at the time and to effectively declassify and personalize them. He talked about declassifying them but he didn’t need to,” Trusty said. He also argued that there was a wide grey area in the interpretation of the Presidential Records Act – which says that the government reserves and retains complete ownership, possession and control of presidential documents.
If Cobb is right and Smith could be moving toward an indictment, Americans could soon be wrestling with an increasingly familiar question: What is the appropriate way to hold to account a president and presidential candidate whose core political model is rooted in breaking all the rules but whose indictment could further inflame an already deeply polarized nation?
Where does the national interest lie in pursuing Trump?
The fresh insight into Trump’s allegedly cavalier handling of classified documents as president and afterward is the latest twist in a saga that shot to public attention with the stunning search of his resort last year by the FBI – the first time that such a search occurred at the home of a former president. Agents took away classified and top secret documents but Trump’s allies claimed he had a “standing order” to declassify documents he took from the Oval Office to the White House residence. Some of those files may have been moved to Mar-a-Lago.
But 18 former top Trump administration officials said they never heard of any such order being issued during their time working for Trump, telling CNN that the claim was “ludicrous” and “ridiculous.” And there is no power for ex-presidents to declassify of possess highly sensitive national security documents, so the exact treatment given to each piece of secret information found at Mar-a-Lago could get to Trump’s potential culpability.
More broadly however, the documents case reinforces the underlying question swirling around Trump that is becoming more acute as the next election approaches.
There is a clear national interest in protecting classified information and enforcing laws surrounding presidential conduct in order to prevent an erosion of the political institutions that underpin the democracy that Trump has tried so often to weaken. And there is also a national interest in proving that no one — whether they are a president or ex-president is above the law.
At the same time however, there is also a profound national interest in the peaceful conduct of a presidential election that all Americans see as fair. And Trump has already successfully cast deep suspicion on the motives of the Justice Department and the Biden administration – arguing, that he is the target of a coordinated campaign of political persecution.
Smith has an obligation to follow the law and the evidence where it leads, and to make decisions on potential indictments and prosecutions on the same basis. But this case cannot unspool in isolation given Trump’s previous role and current presidential campaign. It comes with an obligation – presumably for Attorney General Merrick Garland – to look at the wider potential consequences of putting a former president and current presidential candidate on trial.
This also begs the question of whether a case over the mishandling of classified documents – which could turn on complex legal arguments and questions of motivation – will be an easy sell to a wider public audience and could play into Trump’s claims that he is being victimized. These may be false, but they help brew the secret political sauce which his supporters love.
The case is especially sensitive because Biden also had his own classified documents problem over material found in an office he used after leaving the vice presidency and his garage. The cases are distinct because there is no sign that the president deliberately took the documents and, unlike Trump, made no attempt to prevent their return to the Archives when they were found. But it will be easy for the ex-president and his allies to fog the details of these cases and make a political case that legal double standards are at play and there is a political motivation.
How would multiple indictments weigh on Trump’s 2024 campaign?
The question of the political impact of prosecuting Trump already came up since his indictment in a case being prosecuted by Manhattan District Attorney Alvin Bragg appeared to spike his popularity in the GOP nominating race. It also caused his potential rivals for the top of the ticket to condemn the move as politicized, complicating their own attempts to defeat the ex-president. The case, focusing on alleged violations of book-keeping, is also a complex one to boil down into an argument that might convince millions of Americans Trump is being fairly dealt with.
One big unknown of the current presidential campaign is whether future and multiple indictments would further embolden Trump and cause persuadable voters that he’s being unfairly targeted? Or could it cause his campaign to sink into an abyss of legal and criminal liability?
The release this week of a report by another special counsel – the Trump administration-appointed John Durham – gave Trump fresh political ammunition to argue he’s being victimized. Durham argued that the investigation into the Trump campaign’s links to Russia in 2016 should never have started – even though officials who were serving at the time and many legal analysts disputed his findings. Trump immediately seized on the report to embroider his claims that he is the victim of politicized investigations, casting his argument forward to seek to taint the Smith probe, the Georgia case and the Manhattan indictment.
Wednesday’s new details about his apparently deeper-than-previously-known jeopardy in the documents probe only add to a profound issue clouding the 2024 election.
It may be contrary to the national interest to ignore huge affronts to the rule of law by a previously sitting president – including alleged mishandling of classified information – since questions fundamental to American democracy are in play. But a prosecution could again create a political inferno that could further damage confidence among millions of Americans about the country’s legal and election systems.
This is the treacherous brink to which Trump has again brought the nation.
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