What’s Going On?

I would think we can all agree with this statement from the editors’ of the Washington Post’s remarks on the federal indictment of President Trump:

Something has gone deeply wrong when, in a historic first, federal prosecutors reach the point of filing criminal charges against a former and possibly future president.

Here’s what they think has gone wrong:

The 38-count indictment against Mr. Trump and an aide, unsealed on Friday, includes disturbing details: “Secret. This is secret information. Look, look at this,” the onetime commander in chief says in a transcript of a recording during which he described a “plan of attack” prepared by the Defense Department against a foreign adversary. His audience, according to the indictment, included a writer, a publisher and two members of his staff, none of whom had a security clearance. This was only one episode of gross mishandling of hundreds of pages of materials that included papers on U.S. nuclear programs and this nation’s potential vulnerabilities to attack.

Boxes were moved from a ballroom stage to a storage closet to a bathroom and shower, at one point spilling onto the floor (“Oh no oh no,” texted an employee). Mar-a-Lago hosted tens of thousands of guests at 150 social events, including weddings and movie premieres, during the time the documents were on the premises.

It’s not only the alleged cavalier treatment of classified materials. It is also the extensive effort to avoid compliance with legitimate demands, from which a clear, prosecutable picture of obstruction emerges. Consider Mr. Trump’s alleged instructions to valet and body man Waltine Nauta, also indicted, to hide boxes from his team’s attorney, the FBI and the grand jury; the suggestion to his attorney to make false representations to the FBI and grand jury as well as to conceal or destroy some of the documents called for in a subpoena; and the submission to the FBI and grand jury declaring all relevant documents had been handed over when they had not. Mr. Trump reportedly even asked after receiving a subpoena for the documents’ return: “Well look, isn’t it better if there are no documents?”

The editors of the Wall Street Journal on the other hand have a somewhat different view of what has gone wrong. Like the Post they open with something on which we presumably can agree:

Whether you love or hate Donald Trump, his indictment by President Biden’s Justice Department is a fraught moment for American democracy. For the first time in U.S. history, the prosecutorial power of the federal government has been used against a former President who is also running against the sitting President.

and then turn to their take on what has gone wrong:

The indictment levels 37 charges against Mr. Trump that are related to his handling of classified documents, including at his Mar-a-Lago club, since he left the White House. Thirty-one of the counts are for violating the ancient and seldom-enforced Espionage Act for the “willful retention of national defense information.”

But it’s striking, and legally notable, that the indictment never mentions the Presidential Records Act (PRA) that allows a President access to documents, both classified and unclassified, once he leaves office. It allows for good-faith negotiation with the National Archives. Yet the indictment assumes that Mr. Trump had no right to take any classified documents.

This doesn’t fit the spirit or letter of the PRA, which was written by Congress to recognize that such documents had previously been the property of former Presidents. If the Espionage Act means Presidents can’t retain any classified documents, then the PRA is all but meaningless. This will be part of Mr. Trump’s defense.

The other counts are related to failing to turn over the documents or obstructing the attempts by the Justice Department and FBI to obtain them. One allegation is that during a meeting with a writer and three others, none of whom held security clearances, Mr. Trump “showed and described a ‘plan of attack’” from the Defense Department. “As president I could have declassified it,” he said on audio tape. “Now I can’t, you know, but this is still a secret.”

The feds also say Mr. Trump tried to cover up his classified stash by “suggesting that his attorney hide or destroy documents,” as well as by telling an aide to move boxes to conceal them from his lawyer and the FBI.

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.”

That being said, 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.

Let’s make a little list of the questions that have been raised by this matter:

• Is the Espionage Act of 1917 applicable?
• Is the Espionage Act of 1917 enforceable?
• Is the Espionage Act of 1917 “seldom-enforced” and why?
• Is the Espionage Act of 1917 constitutional?
• Is the Presidential Records Act applicable?
• Is the Presidential Records Act enforceable?
• Is the Presidential Records Act enforced and why?
• Is the Presidential Records Act constitutional?

These are matters of law, policy, and politics. Just for the record my view is that

1. Either the Presidential Records Act shouldn’t exist, the Espionage Act of 1917 shouldn’t exist, or both shouldn’t exist and
2. Intent should have nothing to do with it and
3. If the Espionage Act of 1917 applies to presidents it raises serious separation of powers issues and
4. If the Espionage Act of 1917 is applicable every living president should be indicted under it.

We already have prima facie cases that Presidents Trump, Biden, and Clinton are guilty of violating it and I think we can safely assume that every other living president has, too. Also probably hundreds of high-ranking officials past and present should be indicted for violating it. I have no problem with that.

There’s so much going on in this matter it’s hard for me to see it having been resolved before November 2024. The only way that might happen is if President Trump pled guilty and it’s hard for me to imagine that.