Jurisprudence

Is This Time Different for Donald Trump?

Maybe he can’t escape the law, or the facts, forever.

Trump with a shocked look on his face
Donald Trump in Scranton, Pennsylvania, on March 5, 2020. Bastiaan Slabbers/NurPhoto via Getty Images

The old law school aphorism holds that “if the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”

With Tuesday night’s Justice Department filing in response to the search of Mar-a-Lago for classified stolen documents, it’s safe to assume we are quickly achieving peak table pounding. In part because the Artist Formerly Known as President (there should be an unpronounceable symbol for this phrase) has burned right through his last competent attorneys, the yelling like hell has consisted mainly of posting about QAnon and 4Chan as opposed to any recognizable or coherent legal analysis.

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One of the principal things achieved by the 36-page filing released by the Department of Justice was to brush back claims of executive privilege or blanket declassification that had been trotted out in recent weeks to defend Donald Trump’s possession of stolen documents. Prosecutors instead indicated that Trump’s lawyers had “never asserted that the former president had declassified the documents or asserted any claim of executive privilege.” The rest of the document contends Trump and his lawyers lied to and misled federal officials, and that, perhaps most importantly, Trump “lacks standing to seek judicial relief or oversight as to presidential records because those records do not belong to him.” In other words, he cannot claim that the stolen documents belong to him, as they were stolen.

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It is slightly amusing to consider that Trump and his attorneys in fact brought all of this down upon themselves with their request for a special master. The legal argument upon which he seems to have settled on today is that the FBI is bad at housekeeping and made a mess during the raid. (Marie Kondo #protip? If those classified nuclear documents don’t spark joy, it’s probably time to give them away).

It’s easy to forget that what the Artist Formerly Known as President is now ensnared by is not simply the law, but also the facts. That’s why attempts to compare what he did to what Hillary Clinton did are so fatuous. What Clinton did not participate in was persistent and knowing obstruction. She cooperated with authorities and testified on multiple occasions. Facts still matter, which is why waving around the text of the Espionage Act and threatening riots on the streets as if this were an apples-to-apples comparison to Clinton might make for good television, but it isn’t law.

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We’ve become so accustomed to the great greased watermelon that is the former president it’s impossible to imagine that, after escaping the clutches of the Mueller probe, two impeachment efforts, and a hailstorm of prosecutions in New York, he might finally be good and caught. The tricks he’s used for decades to evade accountability—the high-paid lawyers, the bullying and intimidation of opposing parties and witnesses, and the presidency itself—seem to be failing him this time. As has been the case with Trump and Trumpism, the pressing issue the rest of us must grapple with isn’t so much whether the slow rolling rule of law can finally catch up with him but whether, should he be indicted and tried, the rule of mob will somehow bring down the whole house of cards with it.

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Maybe the best evidence for the possibility that something approximating sanity lies ahead is the relative silence from the very quarters that would ordinarily be howling the loudest. The thing these folks need to explain—before they can justify Trump’s conduct in holding onto secret documents, compromising sources and methods, and then lying about it—is what he was doing with these documents, some of which were tucked into a desk drawer with his passports (i.e., he knew what they were and he knew where they were) in the first place. Until and unless Trump supporters are confident that former presidents can declassify every national security document that crosses the transom forever using nothing but their eyebrows, and then use it for whatever purposes they seek, what we are going to hear a lot of in the coming weeks is less an actual coherent defense and much more a continuation of “but her emails.”

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It’s not, then, just that the law seems finally to have caught up with Donald Trump. It’s that the facts finally have, too; the same facts Attorney General Merrick Garland had vowed to follow wherever they led. The facts here are indisputably bad for the former president, which is why he keeps trying to argue the law. Unfortunately for him, the law is also indisputably bad for him. The table pounding doesn’t seem to be amassing much traction anymore, although he and Sen. Lindsey Graham will certainly keep working the lawless and disaffected into a possibly dangerous lather. But this doesn’t feel like a movement that is ascendant and it doesn’t feel like a movement that is converting a whole ton of new adherents. New Quinnipiac polling shows that Americans, by a margin of 50 percent to 41 percent, think Trump should be prosecuted on criminal charges over his handling of classified documents, and nearly 6 in 10 think he acted inappropriately in handling those documents. That isn’t the dawning of reason, but it is a trend line.

There is still an immense amount that we don’t know. But based on what we do learn each day, this is a significant win for facts, law, and accountability. That is a good deal more than we have witnessed in a long time.

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