Former President Donald Trump has been indicted, again. Last time this happened, back in late March, the charges came courtesy of left-wing Manhattan District Attorney Alvin Bragg – and we called it as we saw it: An indictment resting on a risky and untested legal bank-shot that absolutely reeked of partisan politics. Whatever one thinks of Trump's personal conduct with Stormy Daniels, the notion that he committed a felony is preposterous. That prosecution is a disgrace. This time, the indictment comes from the feds, and it pertains to Trump's post-presidency handling of classified materials, as well as various officials' efforts to recover them.
From what we've learned since last evening, the former president faces seven charges related to this matter. Following the Mar-a-Lago raid last year, the dueling narratives that emerged after that search, and various reports and leaks about the investigation, we have a general sense of what some of the evidence against Trump might look like. But until we can read exactly what the charges are, and what the underlying evidence is, it's impossible to render an informed analysis of the strength of the case, from a legal standpoint. As a non-attorney, I'll leave much of that analysis to experts who know what they're talking about. As an engaged observer of news and politics, however, I can offer the following:
(1) I am entirely open to the possibility – if not the probability – that Donald Trump acted unlawfully in this case. It would not shock me in the least if the government presents a compelling case against his illegal handling of classified materials, in addition to related obstruction of justice. There are laws pertaining to such things, and those laws should mean something. No one is supposed to be above the law under our system, as illustrated by the blindfold covering Lady Justice's eyes. These appear to be very serious legal problems entirely of Trump's own making. And some of his after-the-fact, back-filling (and frankly cockamamie) assertions about his supposed preemptive but unspoken declassification actions while still president are ludicrous. In a vacuum, on the merits, Trump might be, and maybe should be, in real trouble. Details and proof matter a lot, of course, which is why I'm hedging against making too many definitive declarations.
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(2) This indictment does not arrive in a vacuum, however. I understand that the investigators and prosecutors are supposed to be driven by the facts and the law – and nothing more. But given the inescapable and massive political implications of this case, that idealized vacuum does not exist. What does exist is a reality in which the sitting president's administration is pressing criminal charges against the sitting president's leading challenger from the opposite party. That is extraordinary. Even if you think it's justified or necessary, it should still engender profound trepidation. This is explosive. The fact that the same sitting president has been dealing with his own significant, and quite possibly unlawful, breaches of laws governing the handling of classified materials only adds to the peril. Do I think Biden's actions are seriously problematic? Yes. Do I think they're substantially different than what Trump is alleged to have done? Again, yes. Do I think such nuanced distinctions will meaningfully break through? I have my doubts. More importantly...
(3) The most relevant and apt comparison here is not Biden's conduct; it's Hillary Clinton's. As Secretary of State, Hillary Clinton set up a bootleg, totally impermissible private email server. She did so for personal and political convenience. She put reams of highly classified and sensitive national security-related material at severe risk. She almost certainly compromised secrets. Then she lied about it, provably and incessantly, after she got caught. And her team destroyed evidence. What she did was egregious. It was as bad, if not worse, than anything Trump is accused of, based on what we know thus far. She should have been charged with crimes, based on clear-cut violations, plus malice aforethought. That's how I saw it then, as did many legal observers, and I said so. But she was famously not charged. She ended up paying a historic political price for her self-serving recklessness, negligence and mendacity, but she was spared a criminal prosecution.
To charge Trump for similarly egregious behavior (again, let's see the evidence) within the exact same realm doesn't just suggest a double standard – it screams it. That may not matter vis-a-vis the law, based on the particular facts of this case, when considered in isolation. But politics and public perception aren't formed in isolation. The context matters a lot. With roughly half the country already perceiving the Justice Department as politically biased, and not without reason, the "two tiers" argument is only strengthened, also not without reason. That is quite dangerous. Whether this counts as "inconsistent standards" or "weaponization" is parsing. The fact is that the previous Democratic DOJ declined to indict the leading Democratic presidential candidate despite an appalling fact pattern, and now the subsequent Democratic DOJ is indicting the leading Republican presidential candidate over an equivalently appalling fact pattern. Making this observation isn't whataboutism. It's aboutism. Especially in light of the current climate and the high stakes involved, this is enormously important. Some may not want to acknowledge it, but it's the truth.
(4) Another "two-tiers" double standard is the "elites vs. normals" dichotomy. Any random rank-and-file military officer nabbed doing anything close to what Joe Biden did, let alone what Trump or Hillary did, would face the full weight and fury of the American justice system. That political elites from both parties evidently believe they can simply violate laws regarding the protection of our national secrets without consequence is yet another indictment of the system. It's an embarrassment. Might we have an "over classification" problem? Sure. Would this sort of thing still be very illegal, even if significant reforms were made? Almost certainly. Regardless, these laws either matter, or they don't. They should either apply to everybody, evenly, or they should be abolished. To reiterate, none of my "context" arguments are an affirmative defense of Trump on the merits. I argued consistently that Clinton deserved prosecution, and if the evidence against Trump is solid, the same should be said of him. But the resolution of the Clinton case was what it was. That inevitably and necessarily colors Americans' perceptions of how this case is pursued.
(5) Politically, I suspect Trump may again receive an "indictment bounce" among a GOP electorate whose instinct is to rally around a top tribal figure seen as unjustly besieged by the enemy. They have a point. And even though Trump has again wounded himself with self-inflicted behavior, there's a powerful, parallel victimhood narrative at play here. I'm not sure independent and swing voters will have much sympathy for it. But the current game at hand is the Republican primary, so that's the immediately relevant calculation to assess. Maybe, as time passes, more red-leaning voters sober up about the baggage and exhaustion that this man brings to the table. But in the immediate term, my guess is that this development increases the chances that Donald Trump becomes the GOP's 2024 nominee, and increases the chances that he loses again in a general election.
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