Had irony not been well-established as a “thing” before Donald Trump came on to the scene, it would likely be associated solely with him and his administration forever into the future. Recall, Trump was so offended by Nancy Pelosi ripping up a courtesy copy of his State of the Union address that he brought up that he believed that it constituted destruction of an official document, noting that to do so was a crime. Pelosi’s copy, one of about 600 in the building that night, did not constitute an official executive document (the original created inside the White House would). But Trump’s pronouncement, that he knew the law and thought she violated it, may come back to haunt him.
In an article In today’s Bulwark, conservative attorney Chris Taux argues that, despite the dozen or so crimes that progressives believe that Trump clearly committed, the violation of the Presidential Records Act constitutes the biggest threat regarding an actual indictment. This attorney agrees. Sort of.
Despite the fact that Trump may well have acted illegally regarding his conflicts of interest throughout his entire presidency (conflicts are almost unavoidable when a president retains all his assets, located all over the world, and he seemed to act “strangely” with respect to a few), and despite the fact that Trump clearly incited the first insurrection and non-peaceful transfer of power, the only realistic criminal ramifications would come from a crime so obvious, so simple, that Trump all but convicted himself.
I want to allow for the possibility that the Above Top Secret documents found at Mar-a-Lago, depending upon the subject matter and likely purpose, constitutes just as obvious a violation and just as likely prosecution. But Taux writes:
First, this behavior was extensive and extremely well documented. It apparently went on throughout his entire presidency. And hundreds, probably thousands, of documents were destroyed this way. Some of the documents provided to the January 6 Commission had been taped back together and the National Archives apparently has bags full of hand-shredded documents that still need to be reassembled.
“Even if all these shredded documents were recovered by White House staff attempting to comply with the Presidential Records Act — a generous assumption — 18 USC § 2071 prohibits both mutilation and destruction of federal records.”
Mutilated documents sit in the National Archives right now, still shredded, waiting for some poor federal employee to attempt to put them back together. Taux also believes it’s extremely important to note that no less than three people informed Trump that the destruction of documents was illegal, two chiefs of staff and the White House Counsel’s office.
Taux then makes his case:
Trump repeatedly violated a simple, clear-cut legal duty despite being repeatedly warned that what he was doing was illegal. His willful, calculated, open, and notorious refusal to follow the law is exactly the kind of thing that prosecutors most want to prosecute because failing to do so sends a message. While this hasn’t really sunk in, either with Donald Trump or the public at large, Trump’s habit of hand-shredding federal documents places him in his greatest legal danger yet. ”
“It’s a flagrant, long-term, habitual violation that Trump knew was wrong even as he continued to engage in it. The only possible excuse for his behavior is that he believed that laws like the one he violated were for little people and not for him. Now it’s up to Merrick Garland to show Trump that he was wrong. ”
(This would be where most liberals’ hearts sink… “It’s up to Merrick Garland…”)
The crime carries up to three years in prison. Most first-time offenders probably wouldn’t get prison time, for a few violations, though Trump’s years-long practice might make him one of the exceptions.
It always had to be a simple crime. As much as we wanted the grand conspiracy, the note-taker or translator at the Putin meeting going to the New York Times and discussing Putin’s “instructions” to Trump about the Deutsche Bank situation blowing open if he didn’t follow instructions, it just wasn’t realistic because it would involve a complicated trial that would be hard to prove without Russian witnesses. As much as we want Trump punished for January 6th, he will likely only face history history’s conviction and brutal sentence.
Removing Above Top Secret documents is just as clear a crime, there are just as many witnesses, there is no conceivable way it was accidental, he absolutely had to know it was illegal (that’s obvious), and we know those documents constitute a threat to the United States. Additionally, they were stored at Mar-a-Lago for a purpose and it wasn’t to ensure no one ever saw them or they’d been burned “accidentally” the first day back.
To this attorney, Trump committed a crime that was at least as obvious, one that was much more serious, one that could have already caused considerable damage, and one that makes him look like a foreign asset more than a patriotic American, that it’s a very close call and would likely depend upon which specific documents he took and if the purpose was readily apparent. A list of US assets in Russia would make Trump’s motivation obvious to the world.
Either way, the only way Trump would ever face criminal consequences for the first time in his life was always going to be grounded in a blatant violation of a painfully easy law with which to comply, one he broke over and over. Or, a near self-proving and serious law, like the secret documents. This attorney agrees but believes it’s awfully close to 50-50.
Jason Miciak is a political writer, features writer, author, and attorney. He is originally from Canada but grew up in the Pacific Northwest as a dual Canadian-American citizen, which he grows increasingly thankful for every day. He now enjoys life as a single dad, writing from the beaches of the Gulf Coast, getting advice from his beloved daughter and teammate. He is very much the dreamy mystic that cannot add and loves dogs more than most people. He also likes studying cooking, theoretical physics, cosmology, and quantum mechanics. He likes pizza.
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