Jack Goldsmith ponders the nuances of classified and declassified information and the deeply diviooded politic behind this. Sadly, both sides have tarbished credibility:
Several sensible commentators—including George Will, Damon Linker, and David Brooks—think Attorney General Garland made a mistake, perhaps a disastrous one, in executing the search warrant at Mar-a-Lago. (They made these claims before the federal magistrate unsealed the warrant and the inventory of seized materials.) They worry that the search will, in Will’s sedate words, harm “social comity” and “domestic tranquility.”
They are right in this sense: Trump supporters would have viewed any criminal legal process directed at Trump from the Biden Justice Department as, in Linker’s words, “an illegitimate act undertaken by an alien, tyrannical ‘Regime’ resembling a Third World dictatorship.” Justifiably or not, this reaction—and the further diminution in trust in the Justice Department and FBI by a large chunk of the country—was a directly foreseeable consequence of Garland’s decision.
Which is not to say that Garland made the wrong decision. On that question it is far too early to tell. Will is right to suggest that Garland’s decision, even if scrupulously non-political in intent, is “inherently political” and should be judged by how well he “adjust[s] tidy principles to untidy realities” and “balance[s] competing objectives.” And the bar should be very high before the Justice Department in an administration run by Trump’s former and probably future political opponent, uses unprecedented criminal process against Trump—especially given our cleaved politics, upcoming elections, and the well-documented mistakes and illegalities that the Justice Department and FBI committed in pursuing Trump in the past.
And yet Trump has for all his adult life, and especially during his presidency and post-presidency, shown contempt for law. The FBI’s belief that Trump acted illegally in bringing scores of sensitive documents to Florida, or in not returning them upon request, is very far from shocking. It also appears right now—and this too would not be surprising—that Trump and his advisors did not fully cooperate with the National Archives’ and the Justice Department’s efforts to secure and retrieve this information. There obviously must be a point where information is so sensitive, and Trump’s disregard for law so extreme, to justify legal process against Trump, even in the current milieu. Otherwise the law is entirely hostage to a former president’s (and his supporters’) self-serving veto—something no legal system can tolerate.
Given the media's disastrous performance on the Russiuagate trainwreck (no, the walls were NOT closing in...) its hard to take the anti-Trump leaks with confidence. OTOH, Trump is not Mr. Clean here.
Time may tell.
David French walks down Memory Lane and compares Hillary's mishandling of classified info with Trump's. It's possible Trump is faling to cooperate in a way that breaks new ground.
But we can’t rewind the clock. We can only decide how to go forward. And so the DOJ should go forward with the same rule it applied to Hillary Clinton, including the same level of deference. Any other result wouldn’t simply be unjust—insofar as it would refuse to treat similarly-situated people similarly—it would be profoundly destabilizing. There cannot be one set of standards for Democrats and another for Republicans.
Would applying this same standard mean Trump, too, should not face prosecution? Well, not necessarily. We can’t yet conclude that Trump and Clinton’s misconduct is equivalent, and the reason why may relate not to the mishandling of defense information, but rather to obstruction of justice.
The available reporting indicates that Trump didn’t simply remove clearly marked classified material from the White House, he also retained much of that material in spite of repeated requests that it be returned, retained some of that material in defiance of a subpoena, and then ultimately treated the material as his personal property. Here’s Maggie Haberman, Glenn Thrush, and Charlie Savage, writing in the New York Times:
It is not clear why Mr. Trump apparently chose to hang onto materials that would ignite another legal firestorm around him. But last year, he told close associates that he regarded some presidential documents as his own personal property. When speaking about his friendly correspondence with the North Korean leader Kim Jong-un, Mr. Trump said, “They’re mine,” according to a person familiar with the exchange.
Moreover, there’s additional reporting that Trump’s team may have misled the DOJ. Yesterday morning, Maggie Haberman and Glenn Thrush reported that a “lawyer for former President Donald J. Trump signed a written statement in June asserting that all material marked as classified and held in boxes in a storage area at Mr. Trump’s Mar-a-Lago residence and club had been returned to the government.”
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