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It's Not Just the Usual Suspects Calling the Federal Indictment Against Trump 'Damning' and 'Devastating'

Justice Department via AP

Special Counsel Jack Smith unveiled a 37-count indictment against former President Donald Trump on Friday.  Earlier that day, I'd written an analysis explaining why the Hillary Clinton email scandal -- and the lack of criminal charges it produced -- is relevant context to public perceptions of the case now filed against the man who defeated her in the 2016 election.  I stand by my argument that her conduct was approximately equivalent to Trump's in this realm.  In fact, it was arguably worse in the key respect of sensitive secrets actually falling into the hands of hostile foreign powers.  Trump's handling of classified information was abysmally and even cartoonishly reckless, in ways that we'll discuss below.  


But Clinton trafficked in extremely sensitive secrets on a woefully under-secured personal email server, the existence of which she personally arranged.  Beyond her blizzard of lies about this set-up and her team's destruction of evidence, using hammers and BleachBit, one of her senior Obama administration colleagues admitted that due to the nature of her bootleg email system, "odds are pretty high" that countries like Iran, Russia and China were able to penetrate her server and gain access to the classified information it contained. That was the assessment of former Defense Secretary Robert Gates, citing the many thousands of cyber attacks attempted against sensitive US systems every single day. He's almost certainly correct

The arguments that her episode was not nearly as serious as Trump's, or that the decision not to charge Clinton was correct, are not at all persuasive to me.  As I wrote, raising this point isn't 'whataboutism;' it's aboutism.  It matters greatly to how Americans will weigh the fairness of a Democrat-controlled Justice Department moving forward with a classified materials-related prosecution against a leading Republican presidential candidate, having infamously opted out of doing so against a leading Democratic presidential candidate.  I made these points on the Fox News Sunday panel, also noting that none of the Clinton parallels amount to any sort of affirmative defense of what Trump is alleged to have done:

Of course, for Trump and his apologists, the Clinton example cuts both ways:


Having read the indictment in full, the seriousness of the case against the former president is self-evident. It leaps off the page.  The details are appallingly bad -- worse than I'd expected, quite frankly.  Longtime federal prosecutor and respected conservative legal analyst Andy McCarthy, independent-minded legal scholar Jonathan Turley, and former Attorney General (under two Republican administrations) Bill Barr were unanimous in the view that Manhattan District Attorney Alvin Bragg's indictment of Trump was outrageously politicized and astoundingly weak, from a legal perspective.  All three men are again unanimous on this case, this time adopting a very different perspective.  Barr, who was appointed by Trump, calls the case "very, very damning".  Turley uses the phrase "extremely damning."

On my radio show Friday afternoon, McCarthy told me that if the feds could even prove half of what they've outlined, which he described as "devastating," Trump is "toast" -- a line echoed by Barr.  These are not, by any stretch, the words of hyperbolic, reflexive Trump haters.  They are the considered opinions of three figures who've defended Trump on many occasions.  That's significant.  As I prepared for my panel appearance yesterday, I watched the opening segment of FNS with great interest, weighing the Trump defense offered by one of the former president's advisors and attorneys, followed by Barr's commentary.  The substance was night-and-day different.  Watch and judge for yourself:


In my view, Alina Habba offered feeble talking points, including the ludicrous comment at the outset that the former president had done "nothing wrong."  She even contradicted one of the arguments she herself had first raised, after anchor Shannon Bream pushed back with factual information about documents that had spilled out of one of the boxes Trump was storing Mar-a-Lago.  Habba brought up a photo of the contents of that overturned container, then claimed she hadn't seen it, just minutes later.  Barr, by contrast, was compelling and focused.  He powerfully rebutted a flurry of potential Trump defenses, returning repeatedly to the evidence the government says it has gathered against his former boss.  Whether one likes Barr or not, he is one of the most elite legal minds in the country, and his assertions about the quality of this case on the merits are meaningful.  As for my own layman's review of the indictment, these were my top take-aways:

(1) It's "facially ridiculous," to borrow Barr's term, that extremely sensitive documents produced by the Pentagon, CIA, NSA and other agencies were 'personal' items belonging to Trump.  And while so-called 'over-classification' is a problem in general, it's not even in the neighborhood of viable excuses for this, via the indictment: "The classified documents TRUMP stored in his boxes included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack."  Some Trump defenders have attempted the claim that because Trump had the authority to declassify anything he wanted as president, who's to say these documents hadn't been declassified?  It turns out that Trump himself said so, explicitly, on tape:


"Now I can't" declassify these materials he said, adding that the documents he was showing to people with out security clearances was "still a secret."  This was an illegal show-and-tell that he knew wasn't allowed, and said as much out loud, with recordings rolling.  One wonders how many additional times he waved around national secrets to impress people who weren't allowed to be anywhere near them.  We know of at least one other such instance, in which he allegedly showed a classified map related to a military operation to an individual lacking a requisite security clearance.  He reportedly told the person not to stand too close to the map, due to its sensitivity.  Breathtaking.  

(2) This summary of Trump's alleged and flagrantly obstructionist machinations is particularly bad:

According to the indictment (page 21), Trump asked his attorney (who memorialized the conversation), "wouldn’t it be better if we just told them we don’t have anything here?"  That's a clear suggestion to lie to federal investigators.  His lawyer also wrote down that Trump seemed to float the idea of destroying evidence, asking, "well look isn’t it better if there are no documents?"  In case the message hadn't been obvious enough, he also praised the Clinton aide who destroyed her emails, saying he'd done a "great job."  Instructing aides to relocate boxes of evidence to conceal them from the FBI and a grand jury subpoena would be black-and-white criminal conduct, if proven (on top of the illegality of possessing these items in the first place).  But what also strikes me about this is that he was allegedly hiding this material from his own legal team.  These are the people he was paying to help keep him out of trouble, and they're accusing him of intentionally deceiving them on these subjects, resulting in them making false, sworn statements to the courts.  It's impossible not to wonder if this revelation may have had something to do with two of Trump's top attorneys quitting the case on Friday afternoon.  He was making it impossible for them to do their jobs, and apparently leading their team into unethical behavior, without their knowledge.  


(3) All of this was entirely avoidable.  Trump and his team were given many opportunities to simply return the material in question, over many months.  His lawyers obviously advised him to do so.  He just refused, over and over again, to the point of allegedly playing unlawful keep-away with the documents.  Why?  Out of some pathological need to impress random people at his golf club, as if whipping out classified information is a cool party trick?  In the Bragg case, an overzealous, posturing partisan is inventing a new theory of the law to fabricate a felony with which to charge Trump.  In Russiagate, Democrats and elements of the 'deep state' colluded to smear Trump with a lie that they intentionally and cynically concocted for political reasons.  Trump has been unfairly targeted and victimized before, which is why so many of his devoted supporters are so defensive of him.  But while he's presumed innocent until proven guilty here, and we haven't seen his side's substantive defense yet, this does not appear to be an example of government overreach or Trump victimhood.  This appears to be an example of Trump stubbornly and repeatedly choosing to create an enormous legal problem for himself, with the government effectively begging him to take an off ramp and spare himself from what is now happening.

Finally, to reiterate: The Hillary double standard is galling and seriously problematic, in my opinion.  But her egregious behavior, and the Obama administration's related choices, didn't force Trump to do any of this to himself.  Perhaps the GOP electorate will buy into the 'witch hunt' rhetoric flying around, almost out of force of habit.  It's been true before, after all.  Maybe Trump will again gain political support among Republican primary voters who are moved by the grievance card and exasperated, as I am, about the seemingly biased rules of the road.  When Jack Smith said "we have one set of laws in this country, and they apply to everyone" during his brief statement on Friday, those words rang hollow to many Americans, and justifiably so.  But the notion that conservatives should treat Trump like a martyr under these circumstances is nonsense.  So is the idea that these developments, and all the new and additional baggage Trump is piling onto himself, somehow necessitates nominating him, now more than ever.  Trump's self-destructive impulses do not require Republican voters to, in turn, embrace electorally self-destructive impulses.  Indeed, maybe they should consider doing exactly the opposite.



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