The Trump Legal Team’s Inane, Circular Argument for Why He Can Never Be Prosecuted
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The Trump Legal Team’s Inane, Circular Argument for Why He Can Never Be Prosecuted

On Monday, Donald Trump filed an errorriddled motion in a federal court in Florida asking a judge to halt the FBI’s review of the documents the government recovered in this month’s raid of Mar-a-Lago. Trump asked the judge to appoint a special master to do the review instead. It’s unclear if the gambit will work to delay the Department of Justice’s ongoing criminal investigation into the classified materials Trump apparently pilfered, but the request did arrive at the bench of a potentially friendly Trump-appointee.

One aspect of the filing is particularly worth commenting on, perhaps especially given a recent barrage of New York Times editorials arguing that it’s too risky to democracy to criminally investigate a former president and the current leader of the Republican Party, even if said leader can’t seem to stop himself from breaking the law. Ultimately, that argument boils down to: Trump should be granted impunity to do anything he wants no matter how criminal lest his supporters become angry, or unless you want to give a future Republican president free reign to retaliate against his political rivals. In his filing, Trump makes a version of this same argument, essentially saying: You can’t investigate me, it’s a midterm year and I might run for president.

Under the logic of the filing—and the many columns on this subject—there is never an appropriate time to investigate, or ultimately, prosecute Trump for any criminal behavior, ever. The filing suggests the Department of Justice was wrong to pursue Trump, because it is corrupt to investigate him while he’s cooperating with a probe, or after he’s failed to cooperate (if it’s too close to a midterm election), or so long as he is threatening to run for office ever again.

The motion even puts it in a manner that dubiously overstates Trump’s political strength. It would read as ironic if the Trump team had any self-awareness:

Politics cannot be allowed to impact the administration of justice. President Donald J. Trump is the clear frontrunner in the 2024 Republican Presidential Primary and in the 2024 General Election, should he decide to run. Beyond that, his endorsement in the 2022 mid-term elections has been decisive for Republican candidates.

You see, Trump might decide to run for president, and according to his own lawyers, he’s a shoo-in for victory if he does. Also, he’s made a bunch of endorsements in the 2022 midterm primaries, and many of them have panned out (even if others have imploded spectacularly). Therefore, ipso facto, you can never investigate or prosecute him, even for refusing to comply with a lawful subpoena and turn over “scores” of classified documents, some of which were classified under the highest security level, because justice should not be corrupted by politics. Game, set, match DOJ. Donald Trump will be in politics forever!

Trump points to the statement from Attorney General Merrick Garland releasing the details of the Mar-a-Lago search warrant (which showed that a judge found probable cause that Trump violated the Espionage Act and obstructed justice) to prove that this is all political, and therefore he should get his documents back. Here’s what Trump’s team says of the fact that Garland said he approved the search warrant himself:

This public statement is deeply troubling, given that President Donald J. Trump is the clear frontrunner in the 2024 Republican Presidential Primary and in the 2024 General Election, should he decide to run. The statement clearly suggests that the decision to raid Mar-a-Lago, a mere 90 days before the 2022 midterm elections, involved political calculations aimed at diminishing the leading voice in the Republican party, President Trump.

The motion further argues that Garland’s statement “stray from long-standing DOJ policy” by “confirm[ing] the existence of or otherwise comment[ing] about ongoing investigations.”

It fails to mention that Garland’s statement came only after Trump announced the search himself and spent days spreading the lie that FBI agents may have “planted” materials at his residence. It also came after leading Republicans demanded “immediate” “transparency” from Garland, lest the search be considered a corrupt breach that required Congressional oversight. It’s a neat trick. Demand transparency and then when transparency is offered, call it political gamesmanship.

Funnily, in the same motion in which Trump’s attorneys lambasted the attorney general for talking about the raid publicly, they also demanded he do so some more, arguing “there is no basis for keeping information about the raid from the public.”

Heads Trump wins, tails everyone else loses.

What about if the DOJ had acted prior to this tense period entering the final stretch of the midterm election season? Would that have been OK with the president’s lawyers? No, that wouldn’t have worked either—because prior to now, Trump claims he “voluntarily cooperated with your every request.” (There’s even an entire section in the motion titled “President Donald J. Trump’s Voluntary Assistance.”)

Trump has not provided adequate voluntary assistance—as the New York Times reported on Monday, that cooperation did not extend to turning over “26 boxes, including 11 sets of material marked as classified, comprising scores of additional documents.” As the Times added: “One set had the highest level of classification, top secret/sensitive compartmented information.”

Could all of this have been a “breakdown in communications between President Trump’s representatives and the Government,” as the motion states? Perhaps it just wasn’t clear which documents marked “top secret/sensitive compartmented information” the government was interested in getting back? Or more seriously, maybe Trump’s team was still negotiating and had informed the government there were still documents marked classified on site, but that the former president contested that he wasn’t required to turn them over? But none of that is true—after a prior search in June, his lawyers drafted and signed a statement attesting, per the Times’ description, that “to the best of [Trump’s attorney’s] knowledge, all classified material that was there had been returned.”

When the DOJ did go to the ultimate step of drafting a search warrant, proving probable cause to a judge, and conducting a search on Trump’s home, the Times reports that some of the recovered documents—which Trump’s own lawyers told DOJ he had already turned over—were found “in a container in a closet in Mr. Trump’s office.”

There’s surely an innocent explanation for all this hiding of classified documents in Trump’s personal closet. He will likely get to offer that explanation before a judge soon! The argument, though, that his political status frees him up to break whatever laws he wants has always been absurd. Seeing it in a Trump legal filing only further underscores the point.





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