This Is Solely Donald Trump's Fault

Sure, the prosecution will be destructive and make our politics worse. That's why Trump shouldn't have broken the law.

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Dear readers,

If you haven’t read the documents-case indictment against Donald Trump, I suggest you do so. The indictment is an amusing read and also a damning one. (Also, I suggest you check out the special episode of Serious Trouble that Ken White and I put out on Friday breaking down what’s in it.)

It shows the former president retaining documents he knew to be classified, storing them in unsecured locations, showing them off to people without security clearances, and taking repeated steps to avoid complying with a subpoena for their return — including hiding the documents from his own lawyer, who came to Mar-a-Lago to look for them, and causing another one of his lawyers to falsely swear to the government that all responsive documents had been returned.

In other words, Trump broke the law in an extremely flagrant manner. If he had been less flagrant — if he had returned the documents any of the several times the government asked for them back — he would not have been indicted. Chris Christie said it best on CNN last week:

He could have avoided all of this if he had just returned the documents at any point ... between January of 2021 and August of 2022. He wouldn't be here tonight, and the country wouldn't be here.

The arguments against the indictment are so thin as not to be arguments at all. Hugh Hewitt is unimpressed that the Feds didn’t find that Trump sold any of the documents. (What about all the crimes Trump didn’t commit?) The editorial board of the Wall Street Journal calls the indictment “destructive” and argues the Presidential Records Act entitled Trump to retain certain presidential records, which simply isn’t the case, as the National Archives explains. And even if Trump were allowed to store classified documents that belong to the US government on a ballroom stage at his personal, private club as some sort of ex-presidential power or privilege, that wouldn’t entitle him to blow off a subpoena for documents or lie to the government about which documents remained in his possession. Obstructing justice is a crime.

The WSJ implicitly acknowledges Trump committed at least some of the crimes alleged in the indictment:

As usual, Mr. Trump is his own worst enemy. “This would have gone nowhere,” former Attorney General Bill Barr told CBS recently, “had the President just returned the documents. But he jerked them around for a year and a half.”

And yet they add:

If prosecutors think that this will absolve them of the political implications of their decision to charge Mr. Trump, they fail to understand what they’ve unleashed… It was once unthinkable in America that the government’s awesome power of prosecution would be turned on a political opponent.

Excuse me — when was it ever “unthinkable” that the DOJ might prosecute a political opponent of the president? Criminal cases get brought against politicians all the time, including politicians in the opposition party. If doing so were really “unthinkable,” that would mean crime by politicians was effectively legalized. Admittedly, Trump’s extreme prominence makes the situation we are in unusual, but the reason this doesn’t usually happen is you don’t usually have a front runner for a major party nomination who commits crimes, many crimes, crimes of relevance to national security, and won’t stop committing those crimes even when the government repeatedly asks him very nicely not to do so.

People like those who constitute WSJ editorial board, who admit Trump broke the law but still don’t think he should be charged for it, should have to spell out what kinds of crimes a leading politician should not be allowed to commit. I think Matt Glassman from the Government Affairs Institute at Georgetown has this right: Indicting a party leader really is very disruptive and will cause a lot of political strain for the legal system, and it shouldn’t be done lightly. If the case was a close call, it would be right for DOJ to take a pass. But this wasn’t a close call.

Dall-E image generation for “A bathroom with a crystal chandelier, and an orange man with blond hair in a business suit reading a document on the toilet, and boxes and boxes of files stacked up everywhere, Pixar”

Republicans used to think it was important to safeguard sensitive national security information. They used to think obstruction of justice was a serious enough crime that they impeached Bill Clinton for inducing false testimony in a civil lawsuit. If Trump should be allowed to show secret war plans to reporters and have his lawyers swear false affidavits to the government, what crimes would it be okay to criminally charge him for? Would he literally have to shoot someone on Fifth Avenue? I would like to know what the WSJ’s opinion editors think is the answer to that question. I suppose the answer is you can charge Trump if and when Republican primary voters would like him charged for a crime.

By the end, the WSJ editorial gets to its real beef: This whole situation is politically harmful for Republicans:

The charges are a destructive intervention into the 2024 election, and the potential trial will hang over the race. They also make it more likely that the election will be a referendum on Mr. Trump, rather than on Mr. Biden’s economy and agenda or a GOP alternative. This may be exactly what Democrats intend with their charges.

Republicans deserve a more competent champion with better character than Mr. Trump. But the indictment might make GOP voters less inclined to provide a democratic verdict on his fitness for a second term. Although the political impact is uncertain, Republicans who are tired of Mr. Trump might rally to his side because they see the prosecution as another unfair Democratic plot to derail him.

To that I say: well… yeah. And whose fault is all that? Set aside the strange idea that not indicting Trump might make Republican primary voters more likely to themselves deem Trump unfit for office.¹ The rest of this is accurate, but it stems from the problem that Donald Trump is a criminal who is beloved by Republican voters. That problem could be fixed if Trump stopped committing crimes, or if Republicans stopped excusing those crimes. It might be addressed if Trump’s opponents, other than Christie, talked about how Trump was endangering both national security and Republicans’ prospects of winning the next election, instead of sycophantically defending his right to commit crimes. Perhaps, as Noah Rothman suggests, they should start making the case that Trump would be a bad nominee if they want to convince voters to nominate them instead. Instead, the WSJ’s proposal is that DOJ should let Trump get away with crimes.

It’s an insane proposition, but Republicans have spent so many years excusing all manner of Trump’s actions that it’s become reflexive. They have concluded that doing so is their only option even when it has significant negative effects on both the country and the Republican Party. They have watched Trump lose re-election; lose control of both chambers of Congress; tank countless races for House, Senate and Governor by propping up voter-repelling candidates in primaries; sic his supporters on the Capitol to attack his own vice president; and destroy what dignity the party’s officeholders once had. They have decided that they must let him do all this because resistance is futile. That’s been a choice — one that has produced certain payoffs, like a victory in the 2016 presidential election and strengthened control over the Supreme Court.

But they have no good argument for why DOJ should assist them in that degrading process.

People keep asking me what I think this indictment means politically. And my answer is I don’t think it matters very much in the Republican primary — primary voters don’t care if Trump mishandled classified information or obstructed justice. They don’t think he should have to follow the law; at least, a majority of them do not. But in a general election, Trump’s criminality is a serious liability. None of this stuff is broadly popular; Trump’s poor character and dishonesty is a reason he has never won a vote plurality, and it is a significant offset to the political advantages he has gained by jettisoning unpopular Republican positions on issues like Social Security.

This criminal case will indeed be very distracting. The WSJ is right to say the 2024 election is likely to be a referendum on Trump and his crimes, and they’re right to think that’s worse for the country than having an election that’s actually about policy issues. But voters will have good reason to treat the election as a referendum on Trump: his character and conduct really do make him unfit to be president even if you prefer his policy agenda over Biden’s.

It’s a very unfortunate situation. But it’s a situation that Donald Trump put us in, and the only place to point the finger is at him.

Very seriously,

Josh

1. “The special counsel could have finished his investigation with a report detailing the extent of Mr. Trump’s recklessness and explained what secrets it could have exposed,” the Journal proposes, effectively urging that Jack Smith should have taken a page from James Comey by offering editorial commentary instead of an indictment at the end of an investigation, which made absolutely nobody happy last time around.