Quinta Jurecic - The Atlantic
The iron law of scandals involving Donald Trump is that they will always be stupid, and there will always be more of them. Trump scandals—the Russia investigation; Trump’s first impeachment, over his efforts to blackmail Ukrainian President Volodymyr Zelensky; the insurrection on January 6—have something else in common: All these catastrophes result from Trump’s refusal to divorce the office of the presidency and the good of the country from his personal desires.
© James Devaney / GC Images / Getty; The Atlantic
Now Trump’s apparent squirreling away of classified documents at Mar-a-Lago, and his outrage over the Justice Department’s investigation of that conduct, speaks once more to his vision of his own absolute authority—even after he has departed the presidency. It’s a vision that places Trump himself, rather than the Constitution and the rule of law, as the one true source of legitimate political power.
A great deal remains unclear about the documents recovered from Mar-a-Lago—among other things, why and how the material arrived at the estate in the first place instead of remaining in the custody of the National Archives, where it belonged. Reporting, though, suggests that Trump may have understood those documents—material that, under the Presidential Records Act, belongs to the American people—to be his own, to do whatever he liked with. “It’s not theirs; it’s mine,” Trump reportedly told several advisers about the misplaced documents. One “Trump adviser” told The Washington Post that “the former president’s reluctance to relinquish the records stems from his belief that many items created during his term … are now his personal property.” Another adviser to the former president said to the Post, “He didn’t give them the documents because he didn’t want to.”
[Graeme Wood: Not even the president can declassify nuclear secrets]
This childlike logic reflects Trump’s long-running inability to distinguish between the individual president and the institutional presidency, a structure that existed before him and that persists even after he unwillingly departed the White House. In his view, he is the presidency (which … is not what legal scholars typically mean when they talk about the “unitary executive.”) The same logic surfaces in the bizarre arguments made by Trump’s defenders that Trump somehow declassified all the sensitive documents held at Mar-a-Lago before he left office. Under the Constitution, the president does have broad authority over the classification system. But as experts have noted, it makes little sense to imagine a president declassifying information without communicating that decision across the executive branch so that everyone else would know to treat the material in question as no longer classified—unless, that is, you understand presidential power not as an institution of government, but as the projection of a single person’s all-powerful consciousness onto the world.
The approach of separating the presidency from the individual president evolved for a good reason: The vision of the man inextricable from the office he holds tips quickly into monarchy. Again and again during his presidency, Trump did his best to transform executive power into a resource from which to extract personal benefit. He likewise sought to use that power to extend his own time in office—either by seeking damaging information to harm the political chances of an opponent, as in the Ukraine scandal that led to his first impeachment, or by attempting to overturn an election outright on January 6. That tendency to collapse the institutional presidency into a reflection of his own desires often took the form of clashes between Trump and federal law enforcement, as officials tried with varying success to resist Trump’s efforts to turn the Justice Department and the FBI into a Praetorian Guard tasked with going after the president’s political enemies and protecting his friends.
The idea that law enforcement cannot and should not be the tool of the leader’s individual whims is central to the divide between the president and the institutional presidency, and therefore to the idea of “rule of law.” The concept’s roots trace back to the origins of liberal political theory: As John Locke wrote, governmental power “ought to be exercised by established and promulgated laws, that both the people may know their duty, and be safe and secure within the limits of the law, and the rulers, too, kept within their due bounds.” Authority, in this view, stems not from the person of the ruler but from the broader structure of law and the consent of the people.
In his terse public comments about the Mar-a-Lago search, Attorney General Merrick Garland has emphasized this understanding of law and power, which runs so counter to Trump’s. “Faithful adherence to the rule of law is the bedrock principle of the Justice Department and of our democracy,” Garland said in his August 11 press conference announcing that the department would move to unseal the warrant for Trump’s estate. “Upholding the rule of law means applying the law evenly, without fear or favor.”
Trump, obviously, disagrees with this characterization. In posts on his social-media platform, Truth Social, he has returned to familiar tropes, calling the search warrant and related investigation a “hoax,” a “scam,” and a “witch hunt.” During his presidency, attacks such as these on the Russia investigation followed naturally from his own understanding of absolute presidential power. After all, if the president’s authority is total and unbound by law, then how can the DOJ investigate him? As Trump liked to say during his time in office, “I have an Article II, where I have the right to do whatever I want as president.”
[David Frum: Stuck with Trump]
The additional twist of the Mar-a-Lago scandal, though, is that Trump is now implicitly claiming that total authority even out of office. If, before, Trump was furious that Special Counsel Robert Mueller could investigate him even when he was the president, now he is outraged that the DOJ would investigate him even though he is Trump. Supporters of Trump incensed by the search of Mar-a-Lago, Adam Serwer writes, “simply believe that Trump should not be subject to the law at all.”
Following the Mar-a-Lago search, Trump’s Republican supporters in Congress have called to “defund the FBI.” Meanwhile, the former president’s aggressive denunciation of the agency and the Justice Department has coincided with a flood of threats against law enforcement, including the magistrate judge who approved the Mar-a-Lago warrant. A bulletin from the FBI and the Department of Homeland Security announced that, following the Mar-a-Lago search, the agencies “have observed an increase in violent threats posted on social media against federal officials and facilities.” Last week, a man attacked the FBI field office in Cincinnati; recent posts on Truth Social under the name of the attacker, Ricky Shiffer, had called for people to “get whatever you need to be ready for combat” following the FBI’s arrival at Mar-a-Lago. On Monday, prosecutors brought a case against another man, Adam Bies, who had posted threats against federal agents days after the search of Trump’s estate.
Such threats reveal the disturbing logic behind the GOP calls to defund the agency. The goal is not to critique law-enforcement overreach, but rather, as Zeeshan Aleem argues in MSNBC, to make the bureau “completely subordinate to the authoritarian political project.” And this project is authoritarian, because it locates total power in one person—even, it seems, when he has been voted out of office. This vision of Trump’s authority sets up a parallel structure of political legitimacy that competes with the Constitution.
This is the logic of insurrection. “HEY FEDS,” Bies apparently wrote on the social-media platform Gab two days after the Mar-a-Lago search. “We the people cannot WAIT to water the trees of liberty with your blood.” Meanwhile, Representative Bennie Thompson—the chair of the House committee investigating the insurrection—warned that such apocalyptic comments “are frighteningly similar to those we saw in the run-up to the January 6th attack on the U.S. Capitol.”
After all, if power flows not from structures of law and consent but from the will of a single person, then the measure of whether violence is justified and legitimate no longer turns on whether force is channeled through the proper processes of state authority. Rather, it boils down to a single question: Is that violence wielded on behalf of Trump? Or against him?
Newly unsealed documents from the FBI raid on Mar-a-Lago put Trump in even worse legal peril, experts say
New legal documents were unsealed Thursday by a federal judge in the wake of the Mar-a-Lago raid.
They show new details about the possible crimes the FBI was investigating with the search.
They hinted at ways of prosecuting Trump that do not rest on whether documents he kept are classified.
Former President Donald Trump has offered a shifting array of defenses in response to the August 8 FBI search of his Mar-a-Lago resort in Florida, which uncovered a trove of secret documents.
Among them is the claim that he declassified all of the documents while in office under the president's sweeping powers over national secrets.
But procedural documents unsealed Thursday by federal judge Bruce Reinhart, including the cover sheet of the warrant used in the search, revealed that this defense may not be as effective as Trump hoped, legal experts say.
One implication of the new information is that even if Trump is right about the documents being declassified, he still could have broken the law, Lawrence Tribe, a Harvard constitutional law scholar, tweeted.
Prior to Thursday, the only information about the laws agents believed Trump may have broken came from the warrant itself, which was unsealed last Friday.
It listed broad federal statutes Trump may have violated, including the Espionage Act. More specific information was found in Thursday's documents.
They showed that the FBI believes that Trump may be guilty of the willful retention of national defense information, concealment or removal of government records, and obstruction of federal investigation.
Bradley P. Moss, a national security attorney, told Insider that the new documents "clarify but ultimately do not change much" of what we previously knew.
A striking detail, he said, is that the FBI believes Trump has obstructed its probe.
"Clearly, the FBI currently believes Mr. Trump not only took properly marked classified documents to Mar-a-Lago, but he kept them and resisted turning them over when confronted by the government," Moss said.
The FBI could theoretically use a charge of obstruction to pursue Trump, he said, even if the information does turn out to have been declassified.
Moss did suggest, though, that it is unlikely that prosecutors would choose to make that case, even if they technically could.
"I have no reason to suspect the government would pursue a charge if they concluded there was sufficient evidence the records were in fact declassified, as Trump keeps claiming," he said. "Even if the Espionage Act charge falls through, the government could pursue an obstruction charge.
"It is unlikely, but not out of the realm of possibility, they would do so on its own. After all, our jails are filled with people who were caught up in charges lesser than the original aim of what law enforcement was investigating."
The affidavit underpinning the warrant would likely detail the grounds the FBI used in pursuing the warrant.
Reinhart said Thursday that he is leaning toward releasing the affidavit in a redacted form, because it contains sensitive information relating to the ongoing investigation. This could come as soon as August 25, the date of the next hearing.
Insider contacted Trump's office for comment.
His attorney, Alina Habba, in an interview on Newsmax, pushed back on the charges described in the sheet, saying Trump had cooperated with investigators and again said that he declassified the information.
Several figures from the Trump administration have described that claim as implausible or even "a lie."
