Who thought that nineteen months after he left office in disgrace, that the misdeeds of the Orange Menace would still be front and center. And, of course, when he is caught red handed, his first line of defense is take advantage of general ignorance about the finer details of the law to blatantly lie knowing that the true believers will accept whatever he says.
The first basic truth is understanding the law on presidential records. Prior to Watergate, the law was somewhat unclear. But after Watergate, the law was changed to make clear that presidential records belong to the government, not the person who was serving as president.
The distinction between the office and the person holding it has always been something taht Trump has had issues with. While he touted his business background as a reason why he would make a good president, it actually is, potentially, a contributing factor in this problem. The essence of business law is that corporations have a separate legal existence from its owners and its officers. The officers who run a company are supposed to act to further the best interests of the company rather than in their own self-interest or the interest of any group of shareholders. But time after time, corporate officers (especially if they are from the family that are controlling shareholders) get in trouble for using corporate funds for personal benefit. This problem can be even worse in closely held corporations like the Trump Organization with the corporation simply being the alter ego of the primary owner/CEO. And the Trump Organization is exhibit A in how the family that runs the corporation fails to keep the business separate from their personal affairs. Given his inability as CEO of the Trump Organization to recognize the difference between the Trump Organization and Donald Trump, it should not be a shock that Donald Trump failed to recognize any difference between the Office of the President and Donald Trump.
In short, at the end of the Trump Administration, all presidential records should have been given to the National Archives. But because Donald Trump never understood the basic concept that presidential records belong to the government, he kept some of them for himself. And for the past eighteen months, the National Archives and the FBI have been attempting to retrieve this stolen property from Donald Trump. While arguably, Donald Trump could claim ignorance of the law prior to the initial approach from the National Archives, his decision to surrender only some of the records and to hide the remaining records would be proof of potential criminal intent.
Second, faced with evidence that he broke the law, President Trump tried to claim that he was simply doing what President Obama did when he had some documents delivered to Chicago. But, again, this misstates what actually is happening. Every recent President (going back to President Truman) has established a presidential library. The thing is that every presidential library is actually a joint public-private venture. So records at a presidential library are still under the control of the National Archives. Currently, the records are being stored by the National Archives in Chicago to be delivered to the Obama Presidential Library when it opens (probably in 2023). If, and when, the Donald J. Trump Unpresidential Library opens, the National Archives will provide the presidential records which will be accessible to the public at that library.
Third, having failed in the comparison to President Obama, and facing potentially serious criminal charges, President Trump has also tried to compare himself to Secretary Clinton. While the use of a private e-mail account (and private servers) to conduct government business was inconsistent with the spirit of the laws related to government records, upon conclusion of her term in office, Secretary Clinton had her e-mails examined and all work-related e-mails were turned over to the government. While there were some matters discussed in those e-mails which should not have been discussed on a private e-mail network, the investigation revealed that, unfortunately, many government employees use their private e-mails in connection with government business. More significantly, only a handful of the e-mails involved matters that were classified at the time. In contrast, Donald Trump apparently took a substantial number of printed documents that were labelled as some level of classified when he left the White House and repeatedly refused to return those documents to the government. Rather than Secretary Clinton, a better comparison for Donald Trump’s conduct in National Security Advisor Sandy Berger who was prosecuted for (and ultimately pleaded guilty to) removing five copies of a classified document from a National Archives facility. Of course, Sandy Berger’s crimes were relatively minor compared to what President Trump is accused of doing.
Lastly, President Trump claims that he “declassified” those documents prior to their removal. Of course, while the president has the final say for most documents, there is a process for declassification. Typically, the president is not the only person who has a copy of a classified document. If the document is declassified that information needs to be given to the other agencies that hold the documents so that it can be fully implemented. After all, if you are I were to do a Freedom of Information request to the Department of Defense, if the document has been declassified, the Department of Defense needs to know that so that it does not wrongly assert that it is still classified. (There are other reasons why declassification typically involves the input of the impacted agencies so that the decision is an informed decision and does not inadvertently release information which should not be released.) A document is not declassified merely because the president decides to remove it from a secured location and read it later in an unsecured location. In other words, declassification is a formal act and not something that exists only in the mind of the president.
In short, for the past two weeks, Trump’s lips have been moving, and what he has said is about as accurate as his typical statements. Whether the DOJ is inclined to file charges based solely on violations of the laws related to records and classified information is unclear although it has done so for other former senior officials. We are, of course, in unprecedented territory as we have been for much of the past seven years with Donald Trump. Yes, we have never had a search warrant for the residence of a former president, and we have never filed formal criminal charges against a former president — either for his acts in office or after leaving office. But we have never had a president who can’t breathe without potentially committing a criminal offense. Donald Trump has a forty-plus year history of blowing past every legal safe harbor and living in a world of grey where the legality of his conduct is an open question.
One of the reasons why the Republicans want control of the House and Senate is to stop any congressional investigation into the misdeeds of the Trump Administration. Compared to what Republicans have done when they were in charge (how many Benghazi hearings were there), Democrats have been relatively restrained. But one committee looking into President Trump and his coconspirators (which potentially includes oath breakers currently serving in Congress who, as a matter of law, have forfeited their office even if nobody has the guts to vote to remove them for misconduct) is one too many.
With two months to go (which is a lifetime in politics where another shoe can drop on any given day), Democrats have an uphill climb to keep the House majority. Unfortunately, the combination of geography and some creative line drawing in states like Ohio, Florida, and Texas results in Democrats needing around 53% of the total vote to get a majority in the House. Right now, the numbers look very close to 50-50. Things can still change, but Democrats need to gain around 5% over the next two months to be in a safe position. The Senate is looking better. A lot of the races are very close, but candidates like Herschel Walker, Dr. Carpetbagging Fraud (oops I mean Dr. Oz), J.D. Vance, and Ron Johnson could make the difference between a 52-48 Republican majority and a 52-48 Democratic majority. Needless to say, keeping (and potentially expanding) the House majority and getting to 52 Democratic Senators (eliminating the need to keep the votes of Senator Manchin and Senator Sinema to pass legislation) would make for a potentially transformative 2023 while losing either chamber would lead to gridlock.
