#WTH: The Trump indictment

We talk law and country with John Yoo

Three things from our Trump indictment pod this week with John Yoo:

1. The indictment of a former President (and presidential candidate) by a sitting President of the other party crosses the constitutional Rubicon.

2. There is no question that Trump put himself in this position, but his prosecution will only further cement in many Americans’ minds the sense that American justice is hopelessly politicized.

3. The correct jury to assess Trump’s fitness is the jury of the American people, not 12 random Floridians.

The indictment of Donald Trump for a variety of alleged crimes, including violations of the Espionage Act, has thrown the country into a situation never before faced. A sitting President hoping for a second term is charging a former president, and possible general election opponent, with serious federal crimes that could result in substantial jail time.

Did Trump do it? That much appears abundantly clear. Should he have been charged? That is less clear, and people are divided. On the merits of the law, for sure. On the merits of the impact on American rule of law, less so. It’s not just that Hillary Clinton wasn’t indicted for similar failures to protect classified information and deliberate efforts to mislead the Department of Justice; it’s the Russia collusion mess and the weaponization of the Department of Justice and FBI; it’s that Hunter Biden laptop letter (Russian disinformation?? Seriously?); it’s the ridiculous and nakedly political Alvin Bragg prosecution in New York.

But there’s more too. It’s the failure to prosecute Black Lives Matter protesters, Antifa thugs, illegal aliens, shoplifters, drug dealers… and, well, you get the picture. There is a sense among many — and not just Republicans — that the rule of law is a selective and political matter.

And there’s another problem: Just as Trump is under the gun by the Biden Justice Department, you can bet your bottom dollar that the cycle will repeat, endlessly. As John Yoo says in the pod, in South Korea, you can’t find a former president who hasn’t done jail time.

Is that what we want for America? Is there a middle ground? Is there a way out? Dany and Marc have one idea — here’s our Washington Post piece. But no matter what, it’s hard to deny these are uncharted and dangerous waters. What has held America together for almost 250 years are our institutions, our constitution, our respect for the rule of law, and our sense that our government, though not without fault, is the best kind of government to be had. For many, those pillars of the United States are crumbling.

Is all of this Trump’s fault? Hardly. His conduct has been execrable. Probably illegal. He has blatant disregard for both the American people and their institutions. But he is not alone. For more than a decade, we have been governed by leaders who believe the Executive and Judicial branches are tools of ideological enforcement, who have fanned divisions and governed for some, but not all. We are on a slippery slope (sorry for all the cliches, but they fit), on our way to something…. bad. Are there good people out there who can fix this? That is entirely unclear.

** OK, our contest went from too easy to too hard too quickly. Let’s try, per Goldilocks, something in the middle: Marc loves to quote Don Rumsfeld. One of the late Defense Secretary’s favorite quotes talks about known knowns, known unknowns and… ?? Extra love if you can cite where he first said it. There’s a WTH mug in it for our first commenter.

HIGHLIGHTS

What did the Trump indictment do?

JY: There was a bright line that no one had ever crossed before and when you cross it you are breaking some institutional value that we've had for a long time. There's nothing in the Constitution that says a President is immune from being prosecuted in the future, and as I mention in the piece [for Bloomberg], Alexander Hamilton, when he talks about impeachment, says, "Impeachment is just about removing a President from office and then you can prosecute him." So it's something that's clearly anticipated in the founding, but yet we've never done it. We've had some good Presidents, we've had some really bad Presidents, but we never prosecuted any of them. We didn't prosecute Nixon, didn't prosecute Clinton, didn't prosecute LBJ. We didn't prosecute Jefferson Davis and he actually was insurrectionist. He was the President of the Confederacy.

What do you see as some of the questions this indictment raises?

JY: are we using law enforcement here to interfere in elections? Why not wait until the election is over? Or, if Trump should win, why not wait until after Trump's President? But the fact that you're bringing this case now guarantees that it's going to affect the 2024 presidential elections. To me, that's a gamble, a risk that the Justice Department is running because, think about it this way, think about the reverse. Everyone's thinking about, "Oh, what if Trump gets convicted? How does that work?" But think about the opposite. Suppose Trump gets acquitted. I think if he gets acquitted, the Justice Department will have single-handedly handed to Presidency to Donald Trump. Think about what an incredible risk that is.

What about the case on the merits?

JY: If it was anyone else other that a former President, I would be telling the defendant to go get a good plea bargain while you can. Usually, people who are prosecuted for this kind of crime, taking classified information, have a lot less evidence in the indictment. I mean, you've got pictures of the documents themselves in unsecured facilities. You've got apparently tape recordings of the defendant talking about how he's got the documents and how he knows they're still classified. This is the most damaging of evidence in a way because you don't need to rely on witnesses' valuable memory, you don't have to worry about the witness changing stories on the stand. You've got physical photographic proof or recorded proof of Trump himself talking about how he shouldn't have these documents, how he knows that they're classified, and he's violating the law.

How do you respond to Trump’s complaint that neither Hillary Clinton nor any others have been prosecuted for the same or similar crimes?

JY: Trump raises a good point. It just doesn't get you anywhere in the courtroom. You can't show up in the courtroom and say, "I'm innocent because you didn't charge that other person over there." The prosecution is about whether Donald Trump is guilty. So this claim of selective prosecution, it never works, but it's a good argument to make in the political sphere. I mean, you can say that all you want in the political sphere. Maybe it gets you charged or maybe it's why his support seems to go up every time he's gotten indicted, which is why he's looks like he's made sure he is going to get indicted two or three more times before their caucuses.

How do the charges stand up against others’ conduct?

JY: If you compare this to Biden or Pence, [it’s] not really the same thing because they fully cooperated with the government. In fact, you could say particularly with Biden, he might been reckless. But he cooperated. He didn't fight with the government about producing the papers. There's no claims of obstruction or lying to the government that you could bring against Pence and Biden. But I totally agree, Marc, the Hillary Clinton case is hard to distinguish and the reason why is because I don't think Hillary Clinton was reckless. I think Hillary Clinton was intentional. The whole reason she created this home-brewed server computer system to handle her email was deliberately to prevent government knowledge and regulation of those emails. I mean, that's the whole purpose of having a system like that, is to evade the law

Why is everyone so wound up about the Trump prosecution?

JY: The reason why, I think, the Trump, Hillary Clinton thing, resonates with people is because of this background we've already seen, inconsistency of prosecutions between Black Lives Matter, and then the disorder in the cities during Covid, and then the rise in crime we're seeing in a lot of our cities now. The Trump thing, I think, if it was a one-off and we were generally in a relatively safe period with low crime rates like we had before Covid, I wouldn't be as worried.

In this environment where already people are seeing selective prosecution, what worries me is that the difference in treatment between Trump and Hillary, crystallizes, in a very high profile way, that prosecution law enforcement might be biased. And then, if the public loses faith in the integrity of our law enforcement prosecutors, then our system can't function the way it does, I think so effectively, but with such little police presence compared to our friends in Europe or Asia. Which I think is one of the glories of the American system is that we have so much voluntary compliance with the law, but we're starting to lose it now.

Coming back to the indictment, what the hell was Trump thinking?

JY: I find, actually, why Trump did this inexplicable. Marc mentioned Bill Barr, he said this, a lot of us in the conservative legal community have been asking this is, why didn't Trump just return the documents when the FBI asked for them? If he had cooperated and handed them all back, we wouldn't even know, never would've been a public matter. We wouldn't need to have a prosecution at all, because the department did not prosecute Biden or Pence.

Is DOJ going overboard?

JY: In a funny way, the true answer, the true mistake, actually, was not prosecuting Hillary Clinton. And in that case, the Justice Department did not prosecute her 'cause they thought it would affect the election and hand the victory to Donald Trump and depress Clinton's numbers, even though just announcing you weren't prosecuting her had that effect back in 2016. Now, the Justice Department is overreacting, in a way. They've taken the wrong lessons from 2016. They're going to say, "Oh yeah, we should have prosecuted Hillary, so now we're going to prosecute Trump."

Why is prosecuting Trump the wrong call?

JY: So from the former DoJ prosecution, prosecutorial, perspective, the only thing I'll say is, when we decide to prosecute someone, the ultimate thing we have to think about is the public interest. So we look at a lot of factors. How bad was the crime? Are you deterring people? So on. But the most important thing is, is it in the national interest? And the way I think we should think about it is, there's a difference... Look, the Justice Department could prosecute lots of people. Our prosecutors actually don't have the resources to prosecute every person for every violation of every federal crime there is out there. So you have to prioritize and you have to ask, it's not just about punishing the individual, is this in the national interest going forward?

That is actually the most important criterion for bringing a prosecution against anybody in the federal system, and that's what I think people are not really computing carefully, is, think about the incentives this prosecution puts on former presidents, and particularly future presidents, and also on major party candidates. Think about what Trump's going to do if... Suppose Trump wins. He's going to turn the Justice Department on the Bidens, I have no doubt. Is this crossing the Rubicon going to set off a cycle where every president goes under investigation?

Can a felon be president? Is there anything disqualifying for a candidate out of office?

JY: In fact, the only way you could be disqualified would be having been found to be an insurrectionist. So the only way it disqualifies someone who otherwise qualifies to be [president] — you have to be a citizen and born in the US and a certain age — is in the 14th Amendment it says if you actually were found to be part of an insurrection or rebellion, you can be disqualified from running. But classified documents ain't it. Maybe the January 6th, that could be it, but this is not it. So yeah, you could be a felon. You could be in jail.

You’re saying the courts are the wrong way to deal with Trump…?

JY: Look, this is the thing is the American people will know. They're going to make their judgment in the 2024 election. Why not just put all that information out there, just like Durham put all his information out there, or even Mueller put all the information out there and let the American people decide rather than a random jury in Miami about what the American people think about Trump? And I actually think that those two impeachments had an effect on the election in 2020. And the American people did have their say and they said, "We don't want this guy to come back as President."

Full transcript here.

SHOWNOTES

Resources

• Full indictment was released here

• A timeline of the indictment here

• Thread of unredacted pictures of the documents here

Biden DOJ Crossed Political Rubicon With Trump Indictment (Bloomberg Law, June 12 2023)

Fox News with John Yoo, June 9 2023

Who is Jack Smith? What to know about the special counsel who charged Trump. (Washington Post, June 9 2023)

Responses to the indictment

Trump: Strange! Everything about the boxes was so neat, orderly, and clean. Did the FBI tip over the one box the way they “staged” the papers on the floor during the raid of Mar-a-Lago, only to apologize after getting caught?”

Biden: Says he has “never once, not one single time, suggested to the Justice Department what they should do or not do relative to bringing a charge or not bringing a charge.”

Kevin McCarthy: "House Republicans will hold this brazen weaponization of power accountable."

Jonathan Turley: “The problem is that he’s got to run the table, he’s 76 years old, all the government has to do is stick the landing on one count and he could have a terminal sentence. You’re talking about crimes that have a 10- or 2—year period at a maximum. The evidence here is quite strong.”

Bill Barr: “Yes, he’s been a victim in the past. Yes, his adversaries have obsessively pursued him with phony claims. I have been at his side defending against them when he is a victim. But this is much different. He is not a victim here. He was totally wrong that he had the right to have those documents. Those documents are among the most sensitive secrets the country has.”

DeSantis: “The weaponization of federal law enforcement represents a mortal threat to a free society. We have for years witnessed an uneven application of the law depending upon political affiliation. Why so zealous in pursuing Trump yet so passive about Hillary or Hunter? The DeSantis administration will bring accountability to the DOJ, excise political bias and end weaponization once and for all.”

Mike Pence: "Attorney General Merrick Garland, you need to stop hiding behind the special counsel. You need to stand up and explain to us why this was necessary before the sun sets today.”

Pluralities of Americans support second Trump indictment, say charges are politically motivated: POLL (ABC News, June 11 2023)

Trump valet Walt Nauta charged in special counsel probe: Sources (ABC News, June 9 2023)

Senate GOP leaders break with House on Trump indictment (The Hill, June 11 2023)

Law Professor Jonathan Turley On Trump Indictment: ‘He Could Have A Terminal Sentence’ (Daily Wire, June 11 2023)

Why Trump’s ‘Witch Hunt’ Cries Ring Hollow in Face of DOJ Indictment (National Review, June 10 2023)

Trump Is Being Charged with Willfully Retaining National-Defense Information (National Review, June 8 2023)

Trump’s Indictment Exposes His Threat to the Republican Brand (National Review, June 9 2023)

An Exit from the GOP’s Labyrinth of Trump Lies (The Atlantic, June 9 2023)