Trump’s legal defenses are nonsense: Donald Trump has made a series of defenses of the actions that got him indicted in federal court. They don’t make a lick of sense.
What is Donald Trump Thinking?
Ever since Donald Trump was indicted on 37 federal counts involving his handling of classified materials, much of the defenses, whether from Trump himself or his supporters, has centered on whataboutism– how can he be indicted, when Hillary Clinton, President Biden, and others accused of wrongdoing with classified documents were not?
But at times, Trump has also claimed that he is innocent of the charges and that he did nothing wrong involving classified docs.
“SO NOW THAT EVERYONE UNDERSTANDS THAT THE PRESIDENTIAL RECORDS ACT, PLUS THE CLINTON SOCKS CASE, TOTALLY EXONERATED ME FROM THE CONTINUING WITCH HUNT BROUGHT ON BY CORRUPT JOE BIDEN, THE DOJ, DERANGED JACK SMITH, AND THEIR RADICAL LEFT, MARXIST THUGS, WHEN ARE THEY GOING TO DROP ALL CHARGES AGAINST ME, APOLOGIZE, AND RETURN EVERYTHING THAT WAS ILLEGALLY TAKEN (FOURTH AMENDMENT) FROM MY HOME? THIS WAS NOTHING OTHER THAN ELECTION INTERFERENCE!!!,” Trump said in a representative Truth Social post earlier this week.
However, none of Trump’s reasoning is true.
As pointed out by the Associated Press, Trump’s legal defenses of his conduct are completely wrong.
For one thing, it is not true that the Presidential Records Act allows a former president to take any documents he wants.
Trump is charged under the Espionage Act, not the Presidential Records Act. And there’s just about no chance that the records will ever be returned to him.
“On the contrary, the former President had absolutely no right to have taken any presidential records with him to Mar A Lago,” Jason R. Baron, former director of litigation at the National Archives Records Administration, told the Associated Press.
“Under the Presidential Records Act, the Archivist of the United States assumed legal custody of all Trump White House official records immediately upon President Biden’s swearing-in as President,” Baron added. “Every piece of paper constituting an official document, whether it was classified or unclassified, should have been turned over to NARA. Moreover, when NARA staff asked for the return of the records improperly taken, the former President should have immediately given NARA every official document in his possession.”
“There is no way to read that statutory language as giving the president ‘discretion’ to categorize military plans, to take just one example, as ‘personal’,” Georgetown University law professor Josh Chafetz told the AP, of the claim that Trump can claim whatever records he wants.
As for “the Clinton socks case,” when Bill Clinton was president, he was interviewed by historian Taylor Branch and kept the cassettes of those interviews in his sock drawer. The conservative group Judicial Watch had sued in 2012 to try to get access to those recordings, but a judge dismissed the case. There was never a criminal case, or even a criminal investigation, involving the Clinton recordings, or any hint that Clinton did anything illegal; the issue, in that case, was whether or not the tapes were considered public records.
“The Clinton materials were audiotapes of conversations with a historian that incidentally recorded some calls on official business,” Peter Margulies, a professor at Roger Williams University’s School of Law, told the AP. “In contrast, the documents that Trump kept were all presidential records from the moment they arrived at the Oval Office from other parts of the government.”
Trump Seems to Have Doomed Himself
The Washington Post reported this week that a major reason why Trump was ultimately charged is that the former president repeatedly ignored the advice of his own attorneys, to negotiate a settlement over the records. Instead, Trump repeatedly listened to Tom Fitton of Judicial Watch — the same group that had sued Clinton over the tapes in the sock drawer – who gave him the questionable advice that he could keep the documents. Rolling Stone reported this week that Trump’s advisers would like for Fitton to “butt out.”
“Since the National Archives first asked for the return of presidential documents in Trump’s possession in February 2021 and until a grand jury issued its indictment this month, Trump was repeatedly stubborn and eschewed opportunities to avoid criminal charges, according to people with knowledge of the case, many of whom spoke on the condition of anonymity to reveal internal details,” the Post said. “They note that Trump was not charged for any documents he returned voluntarily.”
Expertise and Experience: Stephen Silver is a Senior Editor for 19FortyFive. He is an award-winning journalist, essayist and film critic, who is also a contributor to the Philadelphia Inquirer, the Jewish Telegraphic Agency, Broad Street Review and Splice Today. The co-founder of the Philadelphia Film Critics Circle, Stephen lives in suburban Philadelphia with his wife and two sons. Follow him on Twitter at @StephenSilver.