The Arrest of Donald J. Trump

A legal grownup weighs in.

“There is not an Attorney General of either party who would not have brought today’s charges against the former president.” —Judge J. Michael Luttig

Former U.S. President Trump appears on classified document charges after a federal indictment at Wilkie D. Ferguson Jr. United States Courthouse, alongside his attorneys Chris Kise and Todd Blanche in Miami, Florida, U.S., June 13, 2023 in a courtroom sketch. (REUTERS/Jane Rosenberg)

Catching up:

• “Donald Trump has been arrested more times than he’s been elected.”

• The former president came face to face with special counsel Jack Smith, but for some reason avoided eye contact with the man he has called a thug and a fascist.

• “Visibly deflated after pleading not guilty for the second time in three months, his dry and low-energy resuscitation of his legal defense — even inflected with the usual references to Marxists, Communists and fascists — pleased his advisers but drew a relatively muted response from a crowd that had minutes earlier craned their phones for a shot of his motorcade.” —NYT

• Trump doubled down on his threat to retaliate against Biden; and was notably unsubtle in rolling out his strategy to influence the trial.

• “Judge grants E. Jean Carroll's request to amend $10 million complaint against Trump after CNN town hall remarks.”

• So much for the party of law and order. “JD Vance will block Biden’s DOJ nominees in protest of Trump indictment.”

• Self-deterrence: “Biden orders DNC and reelect to remain silent about Trump’s indictment.”

Happy Wednesday.

Befitting the gravity of the charges and the historic moment, on Tuesday we got endless aerial slow-moving-Bronco television coverage of Donald’s Trump’s arrest and arraignment and, of course, a lot of street circus, complete with Trump flags and a pig’s head on a pike.

So, bear with me for a moment if we detour to the actual substance of the case before us.

Fortunately, Judge J. Michael Luttig — one of the conservative movement’s most important legal thinkers — provided us with some context. While GOP/Fox world bitterly claims that the charges against Trump reflect partisan double standards, the former federal appeals court jurist corrected the record: Any AG of either party would have brought these charges. Here’s what Luttig tweeted yesterday:

[Trump] has dared, taunted, provoked, and goaded DOJ to prosecute him from the moment it was learned that he had taken these national security documents.

On any given day for the past 18 months — doubtless up to and including the day before the indictment was returned — the former president could have avoided and prevented this prosecution. He would never have been indicted for taking these documents.

But for whatever reason, he decided that he would rather be indicted and prosecuted.

After a year and a half, he finally succeeded in forcing Jack Smith’s appropriately reluctant hand, having left the Department no choice but to bring these charges lest the former president make a mockery of the Constitution and the Rule of Law.

Another grownup, General Mark Hertling, also reminded us what is at stake here. (I’ve unrolled the thread.)

A former President is being indicted - for the 2d time - & there's non-stop coverage. Some good analysis, some not so good. Many keep bringing up how "those in the military are likely the most upset about Trump absconding with intel secrets."

Yes, but there's more.

Having read the indictment (4x's now), the amount & type of classified information Trump took, hid, did not secure, and refused to give back is, IMHO, gobsmacking. Many analysts have called them "war plans." I doubt any documents fit into that specific contingency category.

The documents were likely extremely detailed intelligence assessments, w/ potential foe (& friendly) capabilities & weaknesses & US capabilities we would not want anyone - especially foes - to know. Many have said, this isn't a document issue it's a national security issue.

I have seen intel agencies, military units, foreign service officers put sweat & blood into providing these documents, making sure they are accurate. All those individuals KNOW they must get it right, because their work, their assessments, are provided to key decision-makers.

Those who view these docs - the President, high-level military leaders, State Dept officials & others - use these assessments for critical decision making. FOR our citizens, FOR our country. One phrase in the indictment struck me like a bullet. Trump saying: "my boxes."

None of these are "personal papers." These documents provide information/intelligence - gathered through the use of US capabilities, put together by really smart, dedicated, patriotic individuals - to be used by US officials to defend against all enemies, foreign & domestic.

Strategic leaders see and use these documents when they are in a position to serve the American people. They don't get to keep them, or review them, or show them around, or not keep them secure, when they are no longer in the position.

As a military leader in command of different organizations, I "used" each kind of the type of documents found in the trove at MAL. Each kind: Secret, Top Secret, TS-SCI, TS-HCI, NOFORM, TK, even the kinds of ones that were "redactted" (mostly likely various code word).

I was ONLY allowed to see them because they helped me make better decisions, plans, or conduct more effective operations. When I left the military or a specific job, I was "read out" of the clearance. That's what happens to everyone, including the President.

Yes, the President has declassification authority. But that requires a process that then protects a LOT of people. Anyone who says otherwise is a moron. And anyone who says someone can do it after leaving their leadership role is even more moronic.

There's a reason I reacted viscerally to the "my papers" statement. To claim they are "his" - as if they've been given to him for personal use or vanity just like the WWE belt, the NY Post clippings, or any other trinket or memento found in these boxes - is horrid.

Yes, military & intel officials are pissed. They know the power of these documents that were treated cavalierly. All Americans should be equally pissed. But it seems many are not because of how some in government are treating this case. We need to treat this seriously.

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Perp Walks and Counteroffensives

On yesterday’s podcast, Michael Weiss and I discussed both the perp walk and the war in Ukraine. For Weiss, Trump is what he has always been: a lowlife from Queens. Plus: Who blew up the dam, and why?

You can listen to the whole thing here.

**

BONUS for Bulwark+ Members:

You can listen to the whole thing here.

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Inside the courtroom.

From our partners at Lawfare, we get this account first-hand from Anna Bower, who was there…

Trump is already seated at a table on the right-hand side of the room. Overhead, a warm white light appears to shine directly on the former president, casting his orange-blonde hair in a golden hue. He is, both literally and metaphorically, in the limelight.

Yet it strikes me that Trump—the man who positioned bigness as a central issue of American politics (“hugely,” “bigly,” “little Marco”)—looks unmistakably small. 

The courtroom is large, almost cavernous, adorned with slabs of creamy marble and caramel wood. Across the room, the judge’s bench towers over the rest of us. 

Trump, for his part, sits hunched between his attorneys, his trademark grandiosity exchanged for something like solemnity or melancholy.

A murmur travels down the row in which I am seated as members of the media spot the man who has played a role in bringing the famously braggadocious former president to this courtroom: Special Counsel Jack Smith. He is perched in the front row of the gallery on the left side of the room, behind the table where his colleagues from the Justice Department are seated for the arraignment.

Sporting a characteristically steely expression, Smith appears to be pointedly staring at Trump as we await the judge’s entrance.

You can read the whole thing here.

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Pompeo breaks. Pence hedges. Nikki waffles.

For the most part, elected Republicans vied to beclown themselves or pretended not to know anything about the charges. But there were some notable exceptions. Here’s Trump’s former Secretary of State, Mike Pompeo:

“If the allegations are true, President Trump had classified documents where he shouldn’t have had them, and then when given the opportunity to return them he chose not to do that for whatever reason. … That’s inconsistent with protecting America’s soldiers, sailors, airmen and Marines. And if allegations are true, some of these were pretty serious, important documents.”

Former VP Mike Pence is starting to hedge:

“Having read the indictment, these are very serious allegations. And I can’t defend what is alleged,” Pence said in an interview with The Wall Street Journal editorial board. “But the President is entitled to his day in court, he’s entitled to bring a defense, and I want to reserve judgment until he has the opportunity to respond.”

And, then there is Rep. Ken Buck (R-Colo.).

The former local prosecutor and current House Freedom Caucus member added that if Trump is convicted, “I certainly won’t support a convicted felon for the White House.”

The Wapo’s Aaron Blake has rounded up some other GOPers who have not yet fallen into line behind the Orange God King:

Senate Minority Whip John Thune (R-S.D.): “They’re very serious allegations.”

Sen. Lisa Murkowski (R-Alaska): “The charges in this case are quite serious and cannot be casually dismissed. Mishandling classified documents is a federal crime because it can expose national secrets, as well as the sources and methods they were obtained through.”

Sen. Mitt Romney (R-Utah): “Mr. Trump brought these charges upon himself by not only taking classified documents, but by refusing to simply return them when given numerous opportunities to do so.”

Buck: “I think the allegations are very serious. I think there were national security implications from having documents in an unsecure area. … He hid documents, purposefully putting them in a shower, purposely putting them on — on a stage. So there — there clearly is an intent to hide.”

Rep. Tim Burchett (R-Tenn.) on whether he would support Trump if convicted: “I’d just have to read the conviction, but no, honestly, on the surface, I wouldn’t. That doesn’t look good.”

Rep. Don Bacon (R-Neb.): “I just think it’s obvious what the president did was wrong. I just think the emperor has no clothes, and we need to have Republicans stand up and say that, because come around after the primary … the other party’s going to be saying this.”

Rep. Dan Crenshaw (R-Tex.): “It’s very problematic. There’s a reason I’m not commenting on it.”

Baby steps, people. But in the right direction.

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Meanwhile, Nikki is back to talking about pardoning Trump.

After calling Donald Trump “reckless,” Nikki Haley on Tuesday said she would still be “inclined” to pardon him if he is convicted of federal charges….

In Tuesday’s interview, Haley maintained that Trump was “incredibly reckless with our national security,” based on the indictment — but not reckless enough to deserve to carry out a sentence.

“When you look at a pardon, the issue is less about guilt and more about what’s good for the country,” Haley said. “And I think it would be terrible for the country to have a former president in prison for years because of a documents case.

“So I would be inclined in favor of a pardon.”

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The WSJ has some second thoughts. Sort of.

Today’s WSJ editorial board: “The Self-Destructive Donald Trump,” sounds quite a bit different than their earlier spin on the indictment.

GOP primary voters can benefit from reading the latest Trump indictment and asking what it means for a second Trump term. The facts alleged show that Mr. Trump has again played into the hands of his enemies. His actions were reckless, arrogant and remarkably self-destructive. This is the same Donald Trump they will get if they nominate him for a third time….

If Mr. Trump is the GOP nominee, he is unlikely to defeat Joe Biden. But if he did win, the document fiasco is what a second term would be like. He wouldn’t be able to deliver the conservative policy victories that Republicans want because he can’t control himself.

He’d be preoccupied with grievance and what he calls “retribution.” The best people won’t work for him because they see how he mistreated so many loyalists in the first term.

If Republicans really want to defeat Democrats, the press and a hostile bureaucracy, they’ll nominate a candidate who won’t shrink from a fight but will also be smart enough not to blunder into obvious traps.

If Republicans nominate Mr. Trump again, they won’t “own the libs,” as the faddish saying goes. The libs will own them.

But wait. the WSJ also published this bit of legal dreck: “Trump’s Boxes and Clinton’s Sock Drawer.” Which was, in turn, thoroughly demolished by conservative legal scholar Ed Whelan here.

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Cheap Shots

Woke ketchup?

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She really really really really really wants to be vp.