Opinion: As a former AG, I know why Trump’s defenders are wrong

Former President Donald Trump has pleaded not guilty to 37 counts brought against him by the Department of Justice for mishandling classified information. This is his right as an American citizen. It is also his right to make the case that he is innocent of criminal wrongdoing. But it is wrong and dangerous to undermine public confidence in the rule of law itself by calling the case a “witch hunt,” and, as he has previously done, fomenting the baseless conspiracy theory that there is a government-controlled plot to bring him down.

Alberto Gonzales - Courtesy of Alberto Gonzales

Attacking the process and all connected with it is a tried-and-true tactic of individuals burdened by unfavorable facts, as Trump is. Distracting from these unfavorable facts with whataboutism is another. But these disingenuous approaches threaten the very foundations of our country, which are predicated on our citizens’ belief in the rule of law – the principle that our laws are equally enforced, that guilt or innocence is determined by an independent party and that our leaders defer to the institutions responsible for it.

Those of us who believe in civil discourse must seek to shore up our foundations, push back against Trump defenders’ attacks on the rule of law and refuse to be distracted. The role of the institution charged with getting to the bottom of the facts of this matter is straightforward. The job of prosecutors and investigators at the Department of Justice is to investigate criminal wrongdoing and bring individuals who violate the rule of law to justice.

An overwhelming number of federal prosecutors, like Special Counsel Jack Smith, who is overseeing the Trump probe, are career employees of the Justice Department rather than political appointees of the president. Nor was this prosecution instigated by the White House. Attorney General Merrick Garland recused himself and appointed Smith as a special counsel under DOJ regulations, which are designed to shield special investigations and prosecutors from possible political interference from the normal day-to-day supervision of the attorney general and other political appointees.

Though Garland is himself a political appointee, he was confirmed with bipartisan support in the Senate, and Smith has a track record as an impartial upholder of the law. This insulation is important because the political appointees in the Justice Department unfortunately do sometimes cross lines.

The impartial application of the law is how our system, informed by facts and undergirded by checks and balances, has worked – and must continue to work. In the case of Trump’s indictment, those facts, as presented to the grand jury of American citizens, supported bringing serious charges.

First of all, the photographs in the indictment show boxes and boxes being stashed at Trump’s Florida resort. He admitted publicly that there were documents within the boxes, they were his and that he had the right and authority to possess them without coordination with the National Archives. Even after his indictment, Trump acknowledged during an appearance on Fox News on Monday that he had taken the documents, seeming to confirm that part of the indictment. He also claimed he refused to give the boxes back because he had “personal things” in them, including “golf shirts, clothing, pants, shoes,” and was too “busy” to sort through them.

As to the nature of the documents, the disclosures in the indictment reveal their sensitivity: nuclear secrets, war plans and national security capabilities. Some of the material was intended to be seen only by our closest allies and deserved the strongest protection from disclosure. Their exposure risks the gravest harm to the security of our country, our personnel overseas and our partners.

As to accusations by Trump and his allies that he is being singled out when others have done the same and not been charged, the facts do not support these claims. Former Secretary of State Hillary Clinton, former Vice President Mike Pence and then-former Vice President Joe Biden were not or have not been charged relative to the mishandling of classified information even though they were found to have such content in their possession. But the materials were far fewer in number and there is no sign they were near the nature or sensitivity of those possessed by Trump.

Additionally, and importantly, the difference in the level of cooperation between Trump versus Clinton, Pence and Biden could not be greater. The latter three cooperated with attempts by the National Archives to retrieve the information in their possession. Likely uncoincidentally, investigators found their actions to be unintentional or sloppy — none worthy of prosecution. Clinton claimed she did not know she was not permitted to keep certain information on her private server and other devices, and it’s not clear Pence and Biden even realized they had the information, which was handled by their staffs. They should have been more careful, but that doesn’t mean they should have been indicted.

On the other hand, Trump’s actions, as described in the indictment, were deliberate and willful. Not only did he not voluntarily turn over documents when repeatedly asked to do so by the National Archives, but the indictment charges he either took active steps to conceal them or ordered or solicited others for help in withholding them.

Many legal and law enforcement experts believe that if Trump had fully cooperated from the beginning, he would not have been indicted. Given the precedent established by the Clinton, Pence and Biden cases, I believe this to be true. As attorney general, I very likely would not have approved the execution of a search warrant of the home of a former president who had meaningfully cooperated with authorities. There would have been no need to do so.

In fact, given the burden of the responsibility our presidents and senior government officials shoulder, our law enforcement institutions are extremely respectful of them and of their time in my experience. This is true of Trump, as well. The Justice Department and the National Archives gave the former president every opportunity to avoid the charges he now faces. In my judgment, Smith ultimately had little choice but to indict. To do otherwise would have sent the message that the same rules that apply to others don’t apply to Trump.

No one in the nation is above the law. That’s why we all have a stake in the outcome of Trump’s case. It is not just about one person; it is about our system of justice. We all lose — as a country and as a people — if at the end of the former president’s trial, regardless of the outcome, the Department of Justice and the rule of law emerge weaker.

Throughout our history, our democratic institutions have been tested, sometimes to the breaking point. Yet, in the end, those institutions proved capable because of strong, competent leaders who acted with faith and not fear. I encourage today’s leaders to set aside their personal views of the politics of one controversial figure and remain focused on preserving the rule of law.

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