It is becoming increasingly likely that Donald Trump will be indicted for espionage and obstruction of justice—largely because Trump continues to incriminate himself on his vanity media platform. Former Fox “news” commentator Judge Andrew Napolitano made that point in an op-ed in the Washington Times—which is traditionally a Trump-friendly source. (Don’t confuse the Washington Times with the Washington Post.) Napolitano wrote the following:
It gives me no joy to write this piece.
Even a cursory review of the redacted version of the [FBI] affidavit . . . reveals that he will soon be indicted by a federal grand jury for three crimes.
[By] misreading and underestimating the feds, Mr. Trump actually did them a favor. One of the elements that they must prove for any of the three crimes is that Mr. Trump knew that he had the documents. The favor he did was admit to that when he boasted that they were no longer classified.
Trump repeated that self-incriminating “favor” by complaining about the photo of documents seized at Mar-a-Lago, which were photographed on the carpeted floor in the room where they were seized. Trump whined that the FBI “took them out of cartons and spread them around on the carpet.” The statement admitted that he was aware that top secret documents remained at Mar-a-Lago “in cartons” after his lawyers certified that all such documents had been returned to the National Archives.
Before turning to legal developments, it is helpful to put Trump’s “de-classification” defense in perspective. Trump’s constitutional obligation as president was to “take Care that the Laws be faithfully executed” (Art 2, Sec. 3) and to “faithfully execute the Office of President,” (Art 2, Sec. 1). Thus, Trump’s obligation as president was to act in the interest of the United States in all things. The Constitution says so.
In deciding whether to declassify documents, Trump’s obligation to “faithfully execute” the laws regarding classification required him to provide notice to and seek input from the relevant intelligence agencies (to protect the national security of the U.S.). Trump did not have the power to declassify documents on a whim. Nor could he do so out of prurient interest or to protect himself from criminal prosecution or to make it easier for him to read the documents in the residential quarters of the White House.
Trump’s claim that he declassified documents simply because he felt like doing so is a damnable lie. But if he recklessly declassified documents, Trump was not acting as a president “taking care to faithfully execute the laws,” but as a rogue actor violating the spirit and the letter of the law to advance his personal interests. That is no defense to the three crimes being investigated by the DOJ. Indeed, his invocation of de-classification superpowers only proves his awareness of guilt and intent to violate the law.
The DOJ’s response to Trump’s request for appointment of a special master.
With the benefit of 24 hours to analyze the DOJ’s response to Trump’s request to appoint a special master, it is clear that Trump’s motion was a blunder of the highest order. For an excellent and detailed analysis of why that is so, I highly recommend Joyce Vance’s discussion on her Substack blog, Civil Discourse, “Trump in Trouble. As Vance explains, the DOJ lawyers are “glad Trump gave them the opportunity to set the record straight.”
Vance notes that the DOJ raised a serious obstacle to Trump’s request for relief: lack of standing:
[The] DOJ says Trump doesn’t have legal standing to ask the court to act because the documents aren’t his in the first place; they are presidential records that belong to the United States. “Because these records do not belong to Plaintiff, Rule 41(g) gives him no right to have them returned.”
And most damning, the DOJ response asserted that Trump actively concealed defense secrets after his lawyer certified that all such documents had been returned. Vance highlights the following statement in the DOJ’s response:
“The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.”
Finally, Vance notes that the location of Trump’s passports in the same desk drawer that contained classified material “rather neatly link[s] the former president to that material.”
Trump is in trouble, indeed. Republicans are scrambling for talking points to defend Trump—but he keeps undermining their defenses. See Rolling Stone, MAGA Talking Points Grow Even More Absurd After Release of Classified Docs Pic. Some of Trump’s most ardent defenders suggested that the FBI planted the documents in the photo filed with its response. But Trump disproved that defense by asserting on his vanity media platform that he kept the stolen defense documents neatly packed in cartons! See Mediate, Trump Mocked For Confessing He Had Top Secret Documents.
What does this mean for Democrats? First, it provides a reasonable basis to believe that the DOJ will indict Trump. Andrew Napolitano believes an indictment is inevitable, and he is one of Trump’s most loyal supporters. Holding Trump accountable for any of his crimes will be a victory for the rule of law.
Second, it will keep Trump and the GOP off-balance during the run-up to the midterms—which can only be good for Democratic prospects.
Third, it may force a weakened Trump to declare for the presidency as a possible defense to conviction (via self-pardon). If that occurs, it will either clear the field of wannabe GOP contenders leaving a weakened Trump as the presumptive nominee, or flood the field with contenders who believe they can take down a weakened Trump. From a purely partisan standpoint, that can only be good for Democrats.
Trump’s potential indictment on espionage and obstruction of justice is a self-inflicted injury of monumental proportions. And if Trump’s public defense to this point is any indication, he will only make it worse for himself and his defenders as he desperately grasps for a defense that does not exist. As Dahlia Lithwick asks in Slate, Have the facts finally caught up to Donald Trump? In a memorable turn of phrase, Lithwick writes,
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.
Trump is in trouble, indeed—and his inability to shut up is making life worse for himself and the GOP.
Another surprise win for a Democrat in a special election for Congress.
Another Democrat has pulled off an upset victory in a special election for the unexpired term of a vacant House seat. See Politico, Democrat Peltola beats Palin in Alaska special election upset. It is hard not to see a pattern in the unexpected wins in New York’s 19th district (Pat Ryan) and the defeat of the state constitutional amendment in Kansas to limit reproductive freedom.
There are three notable points in Peltola’s win. First, she beat Sarah Palin, a media curiosity famous for being famous. Second, Palin out-spent Peltola by a factor of four. Finally, Peltola is a member of the Yup’ik indigenous community.
Peltola’s margin of victory was small, and her prospects were boosted by a bitter feud between Palin and another GOP contender whose supporters voted for Peltola as their second choice in a ranked-choice voting system. But as with NY-19 and Kansas, the result could have been otherwise—and would have been highlighted by the media as proof that Democrats are doomed.
But at some point, the explanations for why we shouldn’t read too much into Democratic victories must give way to the undeniable fact that we are seeing a trend. The electorate is still narrowly divided, so every vote matters. It will only take a small swing in the electorate to maintain control of Congress for another two years! That goal is within our reach!
The midterms are around the corner. Looking for something to do?
After the Labor Day weekend, ballots will begin arriving in mailboxes in North Carolina on September 9th and voting in several battleground states will begin two weeks later. In other words, the midterms are just around the corner! But there is still plenty of time to affect the outcome—and plenty you can do to help get out the vote.
I have previously promoted the good work of Focus For Democracy and have received rave reviews from readers who have volunteered through the organization. It is partnering with Working America and Movement Labs to mobilize voters for the midterms, especially Black, Latino and Asian American voters by using highly effective texting campaigns based on behavioral science and lessons from recent elections.
Focus for Democracy will hold an event on Wednesday, September 7th at 8:00 PM Eastern / 5:00 PM Pacific featuring remarks from leaders of Working America and Movement Labs. I will also join the presentation to make a few comments about the path to success in the midterms. Join us if you can by registering here: Click here.
If you have been waiting for the right moment to join the battle for the midterms, the moment is upon us. And, as always, volunteering is better if you bring along a friend, so spread the word! If you are a leader of a group and can serve as a co-host by promoting the event within your organization, check out this quick form.
Concluding Thoughts.
A reader posted a comment to yesterday’s newsletter saying that she told her husband she would be working full time on the midterms after this week. While not everyone can make the same level of commitment, we can all join the reader in spirit. For some, the last six months have been a period of worrying, waiting, and dread. The season for action is now upon us. Everyone should direct unproductive feelings of anxiety and worry into productive efforts to help get out the vote. We must have a bias toward action and be willing to step outside our comfort zone for two months. We can do that. We did it in 2018 and 2020. We can do it again in 2022.
Don’t forget to watch President Biden’s speech on Thursday at 8:00 PM Eastern, 5:00 PM Pacific.
Talk to you tomorrow!
Lithwick has earned the ‘phrase maker award’ for “the great greased watermelon that is the former president”! Indeed paints an appalling vision of that creature!
Yesterday morning my husband & I agreed that our trio of daily newsletters by Heather Cox Richardson, Joyce Vance & Robert Hubbell are the perfect way to start the day - excellent historical perspective, fine legal analysis & words that inspire us to action!
Thank you, Robert!