Awash in arguments over redacted affidavits and special masters and the meaning of “uncharged persons,” we might seem to be settling into a debate about the Trump investigation that only lawyers can love.
But along comes Lindsey Graham, a staunch ally of the former president, with this proclamation on Fox News: “If there is a prosecution of Donald Trump for mishandling classified information after the Clinton debacle… there literally will be riots in the street.”
Well, that woke everyone up.
Especially when Trump shared the video on Truth Social. Sounds like a prediction of civil war.
A bitter opponent of Trump who became a close confidant and has been ordered to testify in a Georgia criminal probe of the former president, the senator was not mincing words. But was he delivering a not-so-veiled threat to Merrick Garland about bringing charges based on the boxes of classified material that Trump held back from the National Archives?
Trump, for his part, has essentially called for a revolt at the FBI. “When are the great Agents, and others, in the FBI going to say ‘we aren’t going to take it anymore… The wonderful people of the FBI went absolutely ‘nuts’” during the Hillary Clinton probe, he wrote.
It’s not just about legal language anymore.
Trump is referring to the former first lady’s private email server when she was at the State Department, and sent some emails that were later deemed to be classified. She was not charged, although James Comey did plenty of damage to her campaign by publicly assailing her conduct.
Sandy Berger, Bill Clinton’s national security adviser, was fined $50,000 and given two years probation for stealing classified papers from the Archives.
It is cases like this that make it impossible for me to believe that the Justice Department will bring charges against Trump solely for mishandling classified documents – unless, that is, it’s connected to some further misconduct that was blacked out in that FBI affidavit.
This is not some mere paperwork dispute – these are criminal offenses – but the history of leniency works in Trump’s favor.
Andy McCarthy, a former federal prosecutor, told me on “Media Buzz” that while Trump’s legal strategy of resistance has backfired, the Justice Department insistence that most of the FBI affidavit remain sealed is revealing. “It doesn’t make sense to me that they would fight so hard to withhold this information if they actually intended to charge him,” McCarthy said. Noting the reference to “uncharged persons” – which could obviously include Trump – he added the fact that DOJ is fighting disclosure so hard is “a sign that they won’t prosecute.”
The former president is poised, however, to win a legal skirmish after another judge (appointed by him) indicated she will probably rule in favor of his request for a special master, or outside expert, to review the seized documents. I don’t see what that gets him – DOJ has been poring over this material for three weeks – but the suit itself was widely mocked, especially after his inexperienced lawyers bungled the paperwork.
As for the impact of the Mar-a-Lago search, news accounts, some based on DOJ leaks, make clear that Garland’s investigation is in the early stages. In normal criminal probes, search warrants are executed at the end, often before an indictment. What, then, was the rush, other than retrieving the super-top secret stuff? Still, some of Trump’s defenders have switched to process arguments – too many redactions! – now that emerging evidence makes clear that the 45th president repeatedly held back classified documents that are the government’s property.
What does all this mean for 2024? It’s still extremely difficult for me to imagine Trump running and somehow losing the nomination.
National Review Editor Rich Lowry says that while Trump’s narrative of chaos and persecution is boosting his core Republican support, “that a potential presidential candidate was raided by the FBI is a terrible reason to support him.
“It’s become clear that Trump certainly could have been more cooperative and forthcoming in the negotiations with the National Archives, to keep the conflict from even getting to this point…
“Wouldn’t it be better to go with someone who isn’t so routinely victimized; indeed, someone who doesn’t adopt a framework of victimhood at all?
The answer would seem obvious, but not many Republicans feel that way.”
David Frum, in the Atlantic, says “the enforcement of a search warrant at Mar-a-Lago has rallied trial Republicans to Trump’s defense. The search boosted his fundraising to $1 million a day – and helped to extend his lead over Governor Ron DeSantis in a putative 2024 primary contest. NBC reported on a poll that showed Trump, pre-search, tied with DeSantis in a multicandidate field. Post-search, he led DeSantis 52–20.
“Although the Republican base loves Trump, Republican leaders recognize that he’s a general-election loser. Trump at the head of the ticket in 2024 spells trouble; even a reminder that Trump is at large in 2022 hurts down ballot. That’s why Republican leaders have pleaded with Trump to delay any announcement of a 2024 run until after November’s voting.
“To win consistently, a party needs a broad coalition. A party that keeps alienating great numbers of voters by nominating extremists, crooks, and weirdos is a party that is abdicating from governing.”
That’s an obvious reference to some of the MAGA contenders and election deniers who won primaries with Trump’s backing, but are considered problematic candidates, especially in Senate races, in the midterms.
There’s an old adage in politics that if you’re explaining, you’re losing. My updated version is, if you’re talking about riots, you’re on the defensive, and changing the subject from some very unflattering facts.