One step closer to justice.
August 9 2022
Trump has spent the last half-century flouting the laws that serve as the underpinnings of democracy and the rule of law. In the main, he evaded responsibility for his corrupt behavior. But on Monday, Trump’s charmed life as a professional scofflaw may have ended. The FBI executed a search warrant at Mar-a-Lago directed at Trump’s removal of classified documents from the White House. The warrant was approved by a federal judge and was issued after lengthy negotiations between the DOJ and Trump over the return of the documents. Issuance of the warrant required proof of probable cause to believe evidence of a crime could be seized at Trump’s luxury residence at Mar-a-Lago.
That much we know. The rest is speculation based on unsourced leaks, but there are strong grounds to believe that Trump intentionally violated federal statutes prohibiting the removal or destruction of classified documents. The most reasonable interpretation of these facts is that Trump is the target of a criminal investigation that is likely to result in an indictment of the former president.
The stunning development occurred on the day The New Yorker published an article detailing how the U.S. military opposed Trump’s illegal effort to remain in office. Although seemingly unrelated, The New Yorker article provides further proof of the need for urgency. Except for the flawed but ultimately honorable conduct of Joint Chief of Staff Mark Milley, Trump’s attempted coup may have succeeded.
It is clear that Trump is planning a second coup with the assistance of Republican congressional leadership. Minority Leader Kevin McCarthy sent a tweet intended to obstruct justice by threatening Merrick Garland with a meritless investigation. McCarthy tweeted,
When Republicans retake the House, we will conduct immediate oversight of this department, follow the facts, and leave no stone unturned. Attorney general Garland, preserve your documents and clear your calendar.
Trump issued a lengthy statement that is remarkable for its lack of self-awareness or any sense of irony. As usual, Trump has accused the DOJ of the very misdeeds and corruption that plagued his administration. The statement was ill-advised (like every Trump statement) but especially because it revealed details of the search that would have remained confidential for months (or years). We now know, courtesy of Trump, that the FBI searched his safe—a clear indication that the FBI believes Trump is concealing classified documents in hidden locations at Mar-a-Lago.
Many commentators are noting that the penalty for conviction of removing classified information is disqualification from holding federal office. Whether that penalty can apply to a president is unclear (at least to me). Article II of the Constitution sets forth the qualifications and limitations on persons who can hold the office of president. Whether Congress can add to those constitutional limitations by statute is a question above my pay grade—but I think the question deserves serious consideration. I will wait for constitutional scholars to provide their views. In the meantime, there is a possibility that a conviction of Trump for the intentional removal of classified information may disqualify him from being inaugurated as president again.
The execution of the search warrant at Mar-a-Lago is being described as “unprecedented” and historic. True, but no prior president has stolen classified information upon leaving office. If true, the search warrant is an unremarkable step in a criminal investigation of an “unprecedented” crime. We should prepare ourselves for more “unprecedented” actions by the DOJ if Trump is indicted, but we must constantly remind ourselves that the DOJ is not doing anything “unprecedented” by pursuing Trump. Rather, the DOJ is pursuing an “unprecedented” series of crimes committed by a former president while in office.
Don’t be alarmed or concerned by the histrionic statements of Trump’s enablers. They will bellow and howl about “Defunding the FBI” and “Abolishing the DOJ.” Secretly, they are hoping that Garland will “lock him up”—or weaken him enough to allow the jackals in the GOP to take him down before New Hampshire.
The potential indictment of a former president is no cause for celebration. But it is reassuring and gratifying to know that the DOJ is fulfilling its obligation to “do justice.” If Trump is guilty, he should be indicted and convicted. If Trump is not guilty, an exhaustive investigation by the DOJ will exonerate him. Either way, the rule of law will be vindicated. We can’t ask for more.
Except for speed. We can ask the DOJ to act with all deliberate speed. If Trump is re-elected before he is indicted and convicted, he will never be held to account. As to the need for urgency, read on!
The war between Trump and his generals.
The New Yorker has published an extraordinary “insider’s account” of how senior military leaders resisted Trump’s efforts to convert the military into a pawn in his effort to remain in office. See The New Yorker, Inside the War Between Trump and His Generals. (If that link doesn’t work for you, go to The New Yorker landing page and click on the article title. You should be allowed a “free look” at the article without a subscription.)
I strongly urge every reader of this newsletter to read The New Yorker article from start to finish. It is heartening to the extent that it shows how the military resisted Trump’s overtures. It is frightening that Trump now knows that to succeed in a second coup, he must corrupt the military.
The article is remarkable because it is clearly sourced on conversations with senior military leaders—who were refreshingly candid about Trump’s depraved behavior. In a shocking episode, Trump praised “the German generals in WWII” who obeyed orders from Hitler without question. General John Kelly, ret. (then Chief of Staff) reminded Trump that “Hitler’s generals” tried to kill him three times—and almost succeeded.
In an equally shocking episode, Trump railed against the refusal of “his generals” to deploy National Guard troops against Americans who were protesting the killing of George Floyd. When General Milley objected to the deployment, Trump said,
You are all losers! You are all f**king losers! Can’t you just shoot them? Just shoot them in the legs or something.
After Milley allowed himself to be duped into walking with Trump from the White House to Lafayette Square, Milly penned a remarkable resignation letter—which he never delivered. Because of its historical significance and incredible insight into what Milly was thinking at the time, I quote the letter at length and highlight key passages:
I can no longer faithfully support and execute your orders as Chairman of the Joint Chiefs of Staff. It is my belief that you were doing great and irreparable harm to my country. I believe that you have made a concerted effort over time to politicize the United States military. I thought that I could change that. I’ve come to the realization that I cannot, and I need to step aside and let someone else try to do that.
Second, you are using the military to create fear in the minds of the people—and we are trying to protect the American people. I cannot stand idly by and participate in that attack, verbally or otherwise, on the American people. The American people trust their military and they trust us to protect them against all enemies, foreign and domestic, and our military will do just that. We will not turn our back on the American people.
Third, I swore an oath to the Constitution of the United States and embodied within that Constitution is the idea that says that all men and women are created equal. All men and women are created equal, no matter who you are, whether you are white or Black, Asian, Indian, no matter the color of your skin, no matter if you’re gay, straight or something in between. It doesn’t matter if you’re Catholic, Protestant, Muslim, Jew, or choose not to believe. None of that matters. It doesn’t matter what country you came from, what your last name is—what matters is we’re Americans. We’re all Americans. That under these colors of red, white, and blue—the colors that my parents fought for in World War II—means something around the world. It’s obvious to me that you don’t think of those colors the same way I do. It’s obvious to me that you don’t hold those values dear and the cause that I serve.
And lastly it is my deeply held belief that you’re ruining the international order, and causing significant damage to our country overseas, that was fought for so hard by the Greatest Generation that they instituted in 1945.
After Milley realized his blunder at Lafayette Square, he made a concerted effort to reassure congressional leaders and the incoming Biden administration that he would not allow the military to aid Trump in any effort to remain in office. Although congressional leaders remained wary of Milly, his reassurances were enough to sustain the fragile coalition of military, intelligence, DOJ, and career officials who maintained constitutional order during the perilous few days surrounding January 6th.
The New Yorker article describes the gritty reality of Trump’s attempted coup. It was feral and brutish, sprawling and insidious, inept but deadly. Anyone who reads that article must understand that indicting Trump for his crimes is an existential imperative in the defense of democracy. Send Trump to jail for a violation involving taking classified papers from the White House? Sure! But indicting him for conspiracy to obstruct the count of electoral ballots, or for interfering in the Georgia election, or for promoting the fake electors scheme would send a message that no future president should interfere in the peaceful transfer of power. That message is one that all future presidents need to hear.
Reader engagement opportunities.
The group Tending to Democracy is starting a Giving Circle under the auspices of The States Project. If you are interested, I have pinned a note at the top of the Comments section.
The events of the day have overwhelmed (for the moment) the good news of the Inflation Reduction Act. Yesterday, I urged Democrats to act like the IRA was a significant victory if they expected others to believe so. About midday, a reader sent a note saying that Trumpworld had agreed to describe the IRA as a “tax increase.” The reader was disappointed that there had been no response by Democrats.
At 6:00 PM Pacific on Monday, I saw a commercial on MSNBC that praised the IRA for reducing drug costs for seniors and helping to protect the environment for everyone. That was gratifying—and impressive! The Senate passed the IRA on Sunday evening. Twenty-four hours later, Democrats are on-air with messages promoting the benefits of the IRA. Someone in Democratic leadership has heard the message about messaging and responded in record time! If that is a sign of things to come, we should all take heart!
Oh, and Chuck Schumer said on Rachel Maddow’s show that he would force Republicans to vote again on the proposal to cap insulin and prescription drug prices for all Americans—not just those on Medicare. Schumer has Republican Senators on the run, and he intends to keep it that way. Good! Another good day for Democrats!
Talk to you tomorrow!