He’s the victim. Since President Trump was indicted in Florida last week, those of us who read and listen to conservative media have heard that singular message. The longer version goes like this: he’s the victim of a political witch hunt being carried out by the deep state during a presidential campaign in order to take out the Republican front-runner.
If anyone is sympathetic to this kind of logic, it’s me.
Trump has been the victim of witch hunts by obsessive enemies willing to do anything to bring him down. On those occasions—most prominently Russiagate, and more recently the civil and criminal actions against him in New York—I have never shied away from defending him. As his attorney general, I witnessed firsthand the unfair and venomous treatment he, and those in his administration, often received.
It is also true, as I know well, that Trump is a deeply flawed, incorrigible man who frequently brings calamity on himself and the country through his dishonesty and self-destructive recklessness. Even his supporters, who can’t help but acknowledge that he is own worst enemy, know it.
For the sake of the country, our party, and a basic respect for the truth, it is time that Republicans come to grips with the hard truths about President Trump’s conduct and its implications. Chief among them: Trump’s indictment is not the result of unfair government persecution. This is a situation entirely of his own making. The effort to present Trump as a victim in the Mar-a-Lago document affair is cynical political propaganda.
Here are the plain facts.
On leaving office, Trump illegally removed from the White House hundreds of some of the most sensitive national defense documents that the country possesses. These include information on the defense capabilities of the U.S. and foreign countries; our country’s nuclear programs; potential vulnerabilities of the U.S. and our allies; and plans for potential retaliation against foreign attack. His handling of these documents in bathrooms and ballrooms at Mar-a-Lago was lawless and exposed the country to intolerable risk. The government had every right—indeed, it had no choice—but to retrieve this material.
The U.S. National Archives and the DOJ acted with restraint in trying to do so, giving Trump every opportunity to resolve the matter discreetly for more than a year. But he stonewalled. He ignored his advisers’ repeated warnings that he was playing with fire. The indictment describes in detail how Trump flouted and deceitfully obstructed a grand jury subpoena for the documents by lying to his lawyer and playing a shell game to hide many of the documents. If true, that conduct was a flagrant crime that cannot be excused.
Why would Trump risk the safety of the American people by hanging on to these documents in the face of the government’s lawful demands for their return? As trophies? Because he thought it was a fun party trick? Because he thought it would be cool to show off to houseguests? Or simply because he thought he could get away with it? Knowing him, it was an act of self-assertion merely to gratify his ego.
Some have tried to frame this affair as a simple custody dispute over documents. Trump’s apologists have conjured up bizarre arguments that the Presidential Records Act, a statute meant to prohibit former presidents from removing official documents from the White House, should be interpreted as giving Trump carte blanche to remove whatever he wants, even if it is unquestionably an official document.
These justifications are not only farcical, they are beside the point. They ignore the central reason the former president was indicted: his calculated and deceitful obstruction of a grand jury subpoena.
That Trump had no right to remove national defense documents from the White House is beyond debate. These documents are the very quintessence of the materials that the law expressly forbids an outgoing president from taking with him. Under the Presidential Records Act, when there is a change in administrations, official documents related to the conduct of government business must remain under ownership, custody, and control of the government. The only documents a departing president is allowed to take with him are “purely private” documents unrelated to official duties, such as “diaries, journals, or other personal notes… which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business.”
Obviously, the documents at issue here were generated and used by defense, intelligence, and other national security officials, and they were provided to the president to carry out the business of the government. There is simply no universe in which these could be deemed “purely private” papers like a diary.
That’s why Trump’s apologists don’t even attempt to contend that the documents are private. Instead, they advance a ludicrous argument—perhaps even crazier than their argument that Vice President Pence could unilaterally decide the election on January 6—that an outgoing president has absolute “discretion” to label any document “private,” even if the document indisputably falls outside the statutory definition of “private.”
In other words, they are not merely saying a president has some discretion to determine whether something gray should be treated as black or white. They are saying he has total discretion to label something indisputably black as white—which, if true, would obviously eviscerate the entire Presidential Records Act. (This indefensible position is ably dismantled by Andrew McCarthy in a series of recent National Review pieces.)
All the razzle-dazzle about Trump’s supposed rights under the Presidential Records Act is a sideshow. At its core, this is an obstruction case. Trump would not have been indicted just for taking the documents in the first place. Nor would he have been indicted even if he delayed returning them for a period while arguing about it.
What got Trump criminally charged was his deceit and obstruction in responding to the grand jury subpoena served in May 2022 after he had stymied the government for a year.
That subpoena sought all documents in Trump’s possession that were marked as classified. If Trump truly thought he had a solid basis for keeping those documents, there were easy and obvious ways he could have lawfully raised those arguments at the time. Among other things, he could have taken legal action to quash the subpoena or have a court declare his right to keep them.
He did not do any of that. Instead, the indictment alleges, he led the government to believe he was complying with the subpoena, telling the DOJ he was an “open book.” At the same time, he told his own lawyer it would be “better” to tell the DOJ there were no such documents and suggested his lawyer pluck out any “really bad” ones before giving anything to the government. Why would Trump say these things to his lawyer if he really thought he had a good legal basis for keeping all the documents?
But the pivotal fact—and what ultimately led the DOJ to charge Trump—was the department’s conclusion that Trump personally engaged in an outrageous course of deception to obstruct the grand jury’s inquiry. The indictment alleges in great detail that (1) Trump led his lawyer to believe that he would be allowed to conduct a complete search of all the boxes that could contain the relevant documents; (2) Trump then arranged, without the lawyer’s knowledge, for a large number of the relevant boxes to be removed from the room to be searched, thus preventing a complete search; and (3) Trump then caused his attorney to file a false statement with the court saying he conducted a complete search.
If true—and many key facts come from Trump’s own lawyer—this was brazen criminal conduct that cannot be justified in any way.
The “Double Standard” Argument
Sensible Republicans don’t even try to defend Trump’s behavior. Instead, they point to the flagrant “double standard,” arguing that it’s unfair to charge Trump when Hillary Clinton got away scot-free during the Obama administration for comparable behavior.
I believe there is a double standard. And I have spoken out repeatedly about it when I was attorney general and since.
I think the DOJ sometimes pursues alleged wrongdoing by Republicans with far more gusto than it does when the allegations implicate Democrats. I also agree the differential treatment of Hillary Clinton is a good example of this. During the Obama administration, the DOJ conducted a grossly inadequate investigation of Clinton’s use of a private email server and the intentional destruction of that server before the department had a sufficient chance to review it. This deficient investigation, coupled with sweeping grants of immunity to the key people involved, made it impossible later to impose appropriate accountability on those responsible.
But while the double standard is real, responding to Trump’s indictment by repetitively invoking this grievance is essentially a dodge. It sidesteps the real questions raised by Trump’s behavior.
The question is this: should Trump have been given a pass by the DOJ just because Hillary may have been? Some of my Republican friends think the answer is yes. I am unconvinced. It is not clear to me that giving Trump a pass would be the best way of restoring the rule of law and putting the double standard behind us.
This is not a case where the government has stretched the law or manufactured an offense, and is carrying out a hit job on someone who has really done nothing wrong. Rather, the argument advanced by Trump’s defenders is that, even though Trump’s conduct was indefensible and likely a serious crime, Hillary did the same thing. And it’s unfair that Hillary got away with it.
But if Trump engaged in the kind of brazen criminal conduct alleged, then applying the law in his case is not unfair to him. The injustice lies in not having applied it seven years ago to Hillary. You don’t rectify that omission by giving future violators a free pass. You rectify it by applying the right standard to the case at hand, and insisting it is applied to comparable cases going forward. Here, that means ensuring the same standard is applied in the pending investigations of Hunter Biden and President Biden’s handling of classified documents.
In short, giving a pass to Trump might cause more harm to the rule of law than honestly applying the law to him. The rule of law won’t be restored by further degrading the rule of law. As Andrew McCarthy pithily observed: “The fix for a two-tiered justice system is not equal injustice under the law.”
An Untenable Position
Even if you buy the double standard argument, at most it justifies not holding Trump accountable criminally. It does not mean that his conduct was any less outrageous. And here is where I think too many Republicans are falling down.
It is one thing to argue that Trump should not face criminal liability. Fine. But the next obvious question is whether, given his conduct, the GOP should continue to promote him for the highest office in the land. Many Republicans are avoiding this question and thus implicitly endorsing Trump for the presidency despite his egregious conduct. This posture is untenable.
Many loyal Republicans have instinctively rushed to the ramparts to defend Trump. I understand that impulse. But with each new revelation, they look more and more foolish.
Remember when news first broke of the FBI search of Mar-a-Lago? The roars of Trump supporters were deafening. “Why didn’t the government simply ask for the documents back?” Well, as it turns out, they did ask, politely, for about a year, and they were jerked around. Trump’s supporters then shifted tack. “Well, why didn’t they use a subpoena first before conducting a search?”
Well, as it turns out, they did issue a subpoena, quietly and discreetly, three months before the search, and the search was done only after the government got surveillance video suggesting that, in responding to the subpoena, documents had been illegally withheld. And on and on and on.
Whenever defending Trump is concerned, it is always prudent not to get too far out on a limb until the facts are known. It would be wise to consider that the DOJ has held back a lot of information, and it will be coming out in the weeks ahead. But what we already know about Trump’s behavior is indefensible.