No, I'm not suggesting former President Trump won't be able to retain competent legal counsel. I assume he'll have the best attorney's money can buy (cash up front) representing him against the federal 37-count criminal indictment filed last week by the United States Department of Justice.
However, the offenses enumerated in the 37-count indictment are so outrageous, so ham-handed, and so arrogant that the case seems tailor-made for the fictitious fixer and bus-stop and billboard advertiser Saul Goodman (Better Call Saul) of the Breaking Bad streaming series and the Better Call Saul six-season, 63-episode Netflix series that followed it.
Trump's attorneys may search for technicalities with which to defend the former President, but the basic facts of the case against him are irrefutable. He readily admits to the facts; he simply maintains that, as the former President, he had the right to think away the criminality of the serious crimes that the indictment alleges. And make no mistake; the alleged crimes, covering up the taking of incredibly sensitive intelligence files, are very serious. Talk about Breaking Bad. You just can't make this stuff up.
President Biden and former Vice President Pence were also found to have still-classified documents after they left office (following their prior service). Still, they immediately cooperated when told and returned the classified documents to the Archives of the United States where they belonged.
Trump could have done the same thing and saved himself and the country from this sorry episode. Instead, he lied and conspired to hide the documents. He said he returned everything and, according to the indictment, asked his attorney to "pluck out” from the files anything incriminating.
Former President Trump, it is alleged, thus conspired to keep the government from finding the classified documents. When he was caught trying to keep these files and even hide them, he maintained that when he spirited them away to Mar-a-Lago, they automatically became his personal, declassified property because he, in effect, willed them to be declassified. Yes, he maintains that under the Presidential Records Act, highly sensitive, top-secret files became his for the taking through his telepathic waving off all security restrictions. Whatever he took became unclassified by the very nature of his taking them. This, indeed, seems to be a Better Call Saul case if ever there was one.
This is no laughing matter. This is not a case of the former President having been ill-advised by the White House or other government legal counsel, or as far as anyone can tell, any legal counsel at all. And even if he could declassify these classified documents, some of which are extremely sensitive, why would any thinking, patriotic American declassify some of our most top-secret files (and then store them in an unlocked bathroom or shower stall)?
The 37 felony counts against Trump include 31 counts of willful retention of classified documents, one count of conspiracy to obstruct justice, one count of withholding a document or record, one count of corruptly concealing a document or record, one count of concealing a document in a federal investigation, one count of scheme to conceal, and one count of making false statements and representations.
The files Trump was determined to keep allegedly include top secret files that, in the wrong hands, could endanger the lives of men and women abroad who assist the United States. As noted earlier in this column, he had them stored carelessly at his Mar-a-Lago estate, some in a shower stall, some in a ballroom, and some even in a bathroom.
Apparently, to the dismay of his lawyers, Trump has embraced the advice of Tom Fitton, the non-attorney President of the conservative foundation Judicial Watch. Fitton, it seems, convinced Trump he could claim the records were personal, based on a case during the Clinton Administration in which President Clinton kept his personal tape recordings of conversations with historian Taylor Branch in his sock drawer. At that time, Fitton sued, demanding that the Clinton tapes were official presidential records and had to be turned over to the Archives, where, presumably, he could access them. The court ruled otherwise, making a distinction between what was personal and what pertained to official government business.
How the Clinton sock-drawer case, which Fitton lost, could be construed to suggest that the records that Trump held on to, including incredibly sensitive top-secret documents, became his personal property when he left the White House is mystifying. Still, as noted earlier, you just can't make this stuff up.
According to the indictment, Trump moved extremely sensitive material to Mar-a-Lago. After being advised by the government to return these non-personal materials, former President Trump declared on his Truth Social media site, "Under the Presidential Records Act, I'm allowed to do all this."
Well, no, he isn't. It stretches credulity and any semblance of rational thinking, and such reasoning insults the nation's collective intelligence. That a former President of the United States can simply take whatever government files he has by declaring them his personal property is, of course, absurd. It is irrational reasoning and, perhaps even more alarming, astoundingly unintelligent.
While Trump had retained competent legal counsel, he was unwilling to take their advice when it conflicted with his rationalizations. According to the indictment, he even hid many of the boxes containing government files from his own attorney, which, in turn, caused his attorney to wrongly certify to the government that all of the records in question had been located.
It gets worse. According to Trump's attorney Evan Corcoran's notes, the former President asked him to interfere with the government's attempt to recover files of classified material by suggesting that he lie to investigators and refuse to turn over the documents the government was seeking to recover.
The government obtained Corcoran's notes by invoking the crime-fraud exception that pierces the veil of attorney-client privilege when it can be demonstrated that legal advice was being sought to commit a crime.
The charges include violations of the Espionage Act, conspiracy to obstruct justice, corruptly concealing a record or document, and concealing a document in a federal investigation.
During a speech following his arraignment, Trump remained defiant in the face of his second arrest this year and vowed revenge against President Joe Biden and the attorneys prosecuting this case.
Prominent attorneys who have defended him or otherwise have been favorably disposed toward Trump, including former Attorney General Bill Barr, Trump attorney Ty Cobb, Professors Alan Dershowitz and Jonathan Turley, all think the case against Trump, as presented in the indictment, appears to be quite strong.
Professor Dershowitz, who defended Trump during the impeachment proceedings, noted that "Had the former President cooperated with investigators and immediately returned all the classified material in his possession, as Messrs. Biden and Pence did, charges would have been unlikely, but Mr. Trump did what he always does. He attacked Mr. Smith and resisted his efforts. That provoked investigators to double down, leading Mr. Trump to engage in the allegedly obstructive conduct that forms the basis for several counts in the indictment." Law Professor and conservative commentator Turley commented that the Justice Department's indictment was "extremely damning."
Why former President Trump tried to hold on to and hide documents relating to the nation's nuclear programs, military plans, communications with foreign countries, and other classified files is a mystery. Why he would even think of declassifying such top-secret, sensitive material is an even bigger mystery.
Or is it? Better call Saul.
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Very well done objective essay on the recent indictment. As you noted and others told Trump - return the papers promptly - and having done so, there would be no issue. Unfortunately, his personality did not allow him to make that rational choice.