The Trump Raid and the Case for Cautious Optimism
Monday night was a potentially watershed moment in the age of Donald Trump, which we are still living in eighteen months after his departure from the White House. Federal agents executed a search warrant on Trump’s Mar-a-Lago estate. They were looking for classified material that they had reason to believe Trump had taken from the White House. Numerous observers have emphasized the severity of such a search warrant, noting the fact that it came from a federal judge and not a lower-level state judge.
The debate on Tuesday was ostensibly about rights, the rule of law, and the conduct that would have led to such a historic raid. But behind all of these debates is one simple question: will the 45th president go to jail? A jail sentence would obviously disqualify Trump from ever becoming president again. Liberals would feel an enormous sense of catharsis at watching Trump finally face justice for decades of illicit behavior, both criminal and boorish. Many conservatives would also secretly rejoice, knowing that Trump will fuel the opposition more than any of his current Republican competitors.
Trump does look closer to jail time than he has at any point in his entire life. But Democrats have been here before with James Comey, Rod Rosenstein, and Robert Mueller. Trump opponents should be careful to make sure they are looking at all of the ways the prosecution could go wrong before cheering for the one way it could go right.
The conduct of prosecutors is one of the most considerable boundaries that remains for opponents of the 45th president. Prosecutors are human beings. Like all other human beings, they waver most in situations of high pressure when the smallest mistake could lead to a catastrophic failure. The exploits of John Durham, special counsel for Republicans eager to discredit the Trump-Russia investigation, are a case in point. Durham’s attempted prosecutions have met with failure after failure. He is a laughing stock to millions of Americans who know nothing of his career prior to 2019.
Durham obviously had less to work with than a Trump-focused prosecutor. But the pressure on that prosecutor would be much greater than any pressure Durham has ever faced. This person would be the subject of the national news every night, with every one of their actions analyzed under a microscope for months on end. Their job would almost certainly be in jeopardy if Trump secured a second term. Half of the country would see them as a savior and the other half a political tool.
Along with fallible prosecutors, the other key obstacle to a Trump prosecution is the calendar. The aforementioned scrutiny that Trump-targeting prosecutors will face will balloon once Trump announces he is running for president in 2024. The nation’s focus will turn towards the election, its candidates, and the prospects of a Democratic victory by default if Trump is found guilty. Prosecutors and FBI agents often try to avoid any appearance of meddling in elections. This fear led the FBI in 2016 to postpone a full investigation of Trump’s dealings with Russia until after the election. If the process slows down or early leads fizzle out, it is entirely possible that prosecutors will decline to take action until after the election, in which case Trump will only face any legal consequences if he loses.
The Trump search warrant will obviously gin up excitement among opponents of the former president. It is the largest development in this investigation in years. But it is far from an indictment and even further away from a conviction. Democrats need to avoid the perennial trap of thinking this news story or that new hero will save them from the Trump menace. Trump may still go to jail. But it is more likely that he will need to be defeated at the ballot box first.
With the benefit of hindsight, rightfully so. One of the things which makes it hard to deal with Trump is the constant temptation of Team Blue to put their hands on the scales of justice, which then blows up on them.
So HRC put together a political smear, handed it to the FBI, and agents are human and figured it’s Trump so he must be guilty.
Trump is the fire bug who also magically gets people to pull the fire alarm every two minutes.Report
Prosecutors and FBI agents often try to avoid any appearance of meddling in elections. This fear led the FBI in 2016 to postpone a full investigation of Trump’s dealings with Russia until after the election.
From wiki: On October 28, 2016, eleven days before the election, Comey notified Congress that the FBI had started looking into newly discovered emails.
Huh… weird.Report
Merrick Garland is an old school New York organized crime prosecutor. He’s working his way systematically up the January 6 ladder, and I believe he will prosecute Trump if the evidence warrants.
In this instance, the DoJ was both firing a warning shot at Trump, and reclaiming its mantle of No One is Above the Law. Garland has brilliantly called Trumps’ bluff.
Oh, and do remember that a good many mobsters – like Al Capone – were put away in relatively staid boring administrative infractions like tax fraud. If indeed Trump directed the taking of classified materials – which several sources are now saying included nuclear power and weapons information – and then directed the refusal to turn them over after being subpoenaed (as he apparently was in June), then he can and should go down for that just as easily as he can and should go down for January 6th.Report
Many years ago, John Durham put my guilty client in prison. (Fat Franny Curcio wasn’t actually “my” client; I was a spear carrier on the defense team.) While he had the typical federal prosecutor’s broomstick up his ass, he seemed a straight shooter. I wonder what happened to him. I don’t wonder what happened to Frannie; at over 500 pounds, dying in prison was damn near inevitable.Report
Once again, the dog that isn’t barking in this essay is the army of Trumpists themselves.
What is their reaction to the news of his latest lawless behavior? What does that portend for our democracy? Why are they behaving like this?
In essays by media pundits, these questions are studiously avoided.Report
According to the news:
1) Garland wasn’t involved until after the fact. This implies the WH also wasn’t involved until afterwards.
2) The FBI didn’t think it was going to be a big deal so they didn’t bother with lesser ways to get the documents, like issuing a subpoena for them.
I’m pretty sure that Trump, out of habit, doesn’t do anything for law enforcement without a subpoena.
3) The documents are nuclear secrets, i.e. not related to Jan 6th.
4) It’s implied this was never about putting Trump in prison.
https://www.azcentral.com/story/opinion/op-ed/philboas/2022/08/11/fbi-trump-raid-massive-blunder-newsweek-interview/10298735002/Report
This spring, Trump’s team received a grand jury subpoena in connection with the documents investigations, two people familiar with the investigation, who also spoke on the condition of anonymity to discuss details, confirmed to The Post on Thursday. Investigators visited Mar-a-Lago in the weeks following the issuance of the subpoena, and Trump’s team handed over some materials. The subpoena was first reported by Just the News, a conservative media outlet run by John Solomon, one of Trump’s recently designated representatives to the National Archives.
People familiar with the probe have said it is focused on whether the former president or his aides withheld classified or other government material that should have been returned to government custody earlier. The people, who also spoke on the condition of anonymity to discuss the investigation, said that as authorities engaged in months of discussions on the subject, some officials came to suspect the Trump team was not being truthful.[ed. LOL]
https://www.washingtonpost.com/national-security/2022/08/11/garland-trump-mar-a-lago/Report
So it’s a day with a “y” in it?
From the point of view of the FBI, they want to recover important nuclear documents that aren’t related to anything else.
From the point of view of House Trump, they have multiple investigations to worry about, all of them are for the purpose of attacking Trump, and aren’t cooperating with anything sort of court order and that only if it succeeds on appeal.
The goofy part is, unless Trump plans to get into the business of selling nuclear secretes, him having the documents probably is an innocent mistake by someone.Report
Since, in your own words, you really don’t know what the documents are or how they came to be in his possession, why do you assume it was an innocent mistake, and why by someone else?
Wouldn’t it be far more logical given everything else we know about the man to assume he authorized the theft of secrets for personal gain of some kind?Report
I don’t think he has that level of organization and planning. My expectation is the levels of disfunction and incompetency are very high.
What you’re suggesting would have been very high profile, very likely to attracted the law, require a lot of pre-planning, and there are much easier ways for him to be corrupt that are legal.
If he wants to do something like this, he transfers nuclear secrets to SA while he was Prez and it’s legal. Then a year or three after he leaves they’ll find a way to do him a “favor”. For that matter it might have already have happened while he was Prez considering The Trump Empire is well suited to receive benefits and it’d be invisible.
No signed documents of quid pro quo means it’s legal. If you want to see how close to the line you can get, review the whole HRC pardon thing.Report
Yes.
It WAS high profile, and DID attract attention because the various government agencies were working for over a year to track down the documents and get them back, leading to this moment.
And as we’ve seen repeatedly, incompetence and disfunction are completely congruent with criminality.
And we’ve already documented highly suspicious favors being given by foreign interests to the Trump family.
And yes, it is still illegal without signed documents.
But here is where I call everyone’s attention to the behavior of the Trump apologists.
They admit he is corrupt and uses public trust for private gain.
But they excuse it by alleging it wasn’t a technical violation of the letter of the law (even when it is) and ultimately fall back to “Well its not wrong if the President does it”.
Again, for the Trumpists, Trump is in the class of people who are above the law, protected but not bound.Report
What are you talking about now? You would never accept this reasoning against a high level member of Team Blue.
On some of this, you’ve been claiming that because Trump is sleezy and vulgar, he must be guilty of [this specific criminal act]. Even when we don’t even know if there was a criminal act.Report
Quid pro quo doesn’t need a signed document.Report
Is the amount of proof your pointing to with Trump more or less than the amount of proof we had with HRC selling a pardon for a million dollar donation?
My expectation is we’re in “relationship building” corruption. That’s where party A does random favors for B and vice versa and there’s no actual agreement on anything specific.
HRC showcased just how hard it is to deal with that under our current set of laws. The Trump Empire is The Clinton Foundation on massive steroids because it has an economic reality beyond political corruption.Report
No this isn’t anything like any other President has ever done.
When all past American presidents did favors for foreign governments like offering trade concessions or weapons deals, there was always the rationale that there was some higher purpose in the public interest.
None of that applies to Trumps dealings. Every interaction he has is always transactional and serving only his personal interest. This was the basis of his impeachment, that he offered weapons to Ukraine only in exchange for dirt on his rival.
Literally a quid pro quo, “This For That”.
His dealings with the Saudis have the same aspect. There is no plausible reason to offer them nuclear technology or even consider such a thing.
But then coincidentally his son in law got 3 billion dollar gift from the Saudi government, for no possible reason.
We don’t know if any of the top secret documents in this case are related this this, or any of his other corrupt dealings.
But there is every logical reason to assume that he kept the documents for personal gain. Because that’s his proven track record.Report
Bhahahaha.
Replace the words “pardon” and “a million dollars” and you’re talking about the Clintons.
And their stunt didn’t rise to the level of quid pro quo.
No, I take that back. This is even less direct and less obvious than what they did.
You’re not even close to describing something that would get him in jail unless you can prove he was selling these documents as opposed to just letting them rot in his basement with everything else he took from the WH.Report
Who said I was trying to prove anything in a court of law?
I’m just pointing out how obvious Trump’s personal corruption is, his lack of any sense of honor or character or sense of public service. That he is wholly unfit to be allowed any sort of trust or power that he would betray any ally or side with any enemy of the nation, just for his personal gain.
And yet, this is exactly who the Trumpists want to hold the highest office in the land.Report
Pot, meet kettle.Report
https://www.nbcnews.com/news/world/trump-admin-gave-green-light-nuclear-permits-saudi-arabia-after-n1013826
Do remember that Trump is a major investor in the Saudi sponsored LIV golf circuit.Report
This isn’t campaign finance where I’m too stupid to commit this crime is a defense. These are national security laws where if you violate them for stupid reasons, you still committed a serious offense.Report
My expectation is those laws didn’t envision the President of the United States playing election games.
Now Garland got a Judge to agree with him so there’s that… but that’s still a fair bit away from putting Trump in jail.Report
The goofy part is, unless Trump plans to get into the business of selling nuclear secretes, him having the documents probably is an innocent mistake by someone.
No. Just No. That is not how any of this works.
Go look up the Atomic Energy Act. Go sign on and take the govt’s online class on classification (it’s free and those of us who have to take it every year have this stuff practically memorized). Nuclear secrets are NOT things that might ‘just happen to be lying around the Oval or the Residence’ while team Trump was packing up documents. These are very tightly controlled documents, *and* ones even a president can’t just decide to declassify.
In short, if he has documents controlled per this act, there is no fishing way it was an ‘innocent mistake’ by someone. Moreover, even if, in the this-whole-decade-has been-a bad-soap-opera-script somehow found a way to make that a plotline, just being in possession of that intel at a private residence would more than qualify for violating a number of serious laws, all involving prison time.Report
At about 2:30 in: https://www.wmur.com/article/merrick-garland-makes-statement-at-department-of-justice/40872054#
Report
It’s a pity George isn’t around. He used to swear by Durham.Report
Apparently Breibart doxxed the FBI agents involved in the search. Things are going rather swimmingly.Report
Back the Blue.Report
Considering how it went for Trumper who attacked the FBI in Cincinnati you’d think they might have thought about that more.Report
It also appears, as we discussed in one of the threads, that there is a team going through what was seized and returning things they aren’t after – like expires passports:
https://www.nbcnews.com/politics/donald-trump/trumps-passports-returned-mar-lago-search-doj-official-says-rcna43192Report