Supporters of Donald Trump — politicians and voters alike — have a seemingly bottomless well of excuses for the former president whenever he gets into serious legal trouble. In the wake of Trump’s indictment by the Justice Department, Republicans have been working overtime to come up with some reason to oppose the prosecution over retaining highly sensitive government documents and obstructing the government’s efforts to recover them. Here are some of the most prominent defenses we have heard from Trump supporters in recent days, along with an effort to bring some actual facts to bear on the claims.
1. Hillary Clinton, Bill Clinton, and Joe Biden All Did It, Too
No, they really didn’t.
The two most obvious flaws with this argument: First, Trump has been charged with willfully retaining national defense information, not merely possessing it, and none of the fact patterns involving the Clintons or Biden involve any comparable effort to hold onto sensitive material after being alerted to this fact by law enforcement authorities. Second, none of those other people have been accused of anything remotely like the elaborate and sustained effort by Trump to obstruct the government’s effort to recover the material in question.
Yet another problem with this claim as it relates to Hillary Clinton and her email server is that the Trump Justice Department conducted a criminal investigation of her and came up empty — a little-noticed fact during the Trump years that has been almost entirely forgotten. As the Washington Post reported when the investigation closed in early 2020, it “included the Clinton Foundation and Uranium One matters, along with the FBI’s handling of the investigation into Hillary Clinton’s use of a private email server while she was secretary of State and alleged leaks by former FBI director James B. Comey.”
Many of us, of course, are familiar with the allegations against Clinton and Biden, who possessed a small number of classified documents from his prior stints in government, but the argument Trump himself trotted out this week against Bill Clinton concerns a collection of tape recordings of interviews that Clinton had with a biographer while in the White House. The comparison is quite silly and relies on a very strained reading of a single court decision that has been advanced most prominently by conservative activist Tom Fitton. This is the same guy who reportedly urged Trump to fight the Justice Department’s investigation when he may have easily been able to resolve it with a little cooperation — shockingly bad advice that should preclude this man from weighing in on any of this.
2. Trump Was Entitled to Obstruct the Investigation
Republican congressman Jim Jordan of Ohio has insisted that Trump did nothing wrong because he was entitled to take whatever he wanted after leaving office, but Jordan also recently took aim at the obstruction charges lodged against Trump with a simple retort: “You can’t obstruct when there was not an underlying crime.”
The theory seems to be that because Trump was entitled to possess the documents (which is itself hotly disputed, of course), then he cannot be prosecuted for obstructing an investigation that sought to recover them. This is extremely wrong.
Suppose, for instance, that you get a federal grand-jury subpoena as part of a tax-fraud investigation that requires you to turn over all of the financial records and receipts in your possession. Let’s stipulate, too, that you know that you are wholly innocent. You are still required to produce the material sought by the subpoena even though those are your documents and even though you are confident that you will be cleared once the investigation is over. That is how subpoenas work: They are not optional.
Jordan almost certainly knows this. After all, he was one of the most prominent boosters of the legendarily bungling special counsel John Durham, who tried and failed to prosecute two different people for lying to the FBI in connection with the Trump-Russia investigation even though they were never even charged with any other crimes. (Lying to the government is, of course, a classic form of trying to obstruct an investigation.) The effort failed miserably after both defendants were acquitted, but while it was underway, Jordan did not care one bit about the fact that they had not even been charged with any underlying substantive offenses.
3. The Presidential Records Act Is Not a Criminal Statute
Another line of argument holds that Trump was simply following a process provided by the Presidential Records Act for former presidents who want to retain custody of certain records after leaving office and that it was therefore somehow beyond the pale to use criminal statutes to address his alleged misconduct. “The Presidential Records Act is not a criminal statute,” as former New York Republican congressman Lee Zeldin put it over the weekend.
The allegations in the indictment, if true, blow a hole through this argument as a factual matter, since there is no indication that Trump was actually trying to comply with the statute by engaging with the government on whether he could keep any of the material in his possession. He appears to have simply decided for himself that he could keep it.
There is, however, a more fundamental problem with this line of attack — namely, that criminal statutes are routinely used by prosecutors even when the underlying context otherwise implicates a civil legislative or regulatory scheme. We have civil statutes that govern the administration of health care in this country, but if a doctor submits a false claim for Medicaid reimbursement, he can be charged with health-care fraud. Likewise, we have an elaborate legal apparatus that governs the financial-services sector, but if someone at a bank cheats a client, that person can be charged with wire fraud. Similarly, Trump was charged under the Espionage Act, and there is no indication that the Presidential Records Act somehow superseded or displaced that law.
This argument is not likely to go away anytime soon, because it at least has an apparent foothold in a recognizable legal doctrine, but it is a strongly disfavored one. As a practical matter, judges routinely reject these sorts of arguments in criminal cases. They should — which is not to say that they necessarily will — do the same thing here.
4. Republican Voters Don’t Care
Criminal prosecutions are not subject to a public show of hands, but that hasn’t stopped Republicans from calling the case into question simply because many Republican voters do not like it. They have been aided in their effort by two polls that were released over the weekend, but they were literally in the field last Friday and Saturday, as Americans were still learning the specifics of the first-ever indictment of a former president. The indictment was not even unsealed until Friday afternoon.
More fundamentally, there is an obvious circularity to the argument, which is essentially that Republicans should not care because they currently do not care. A good deal of this reaction is no doubt a result of the fact that the party has anesthetized many of its voters to the notion that Trump might actually be a bad person, a criminal, or both, but the suggestion that their entrenched views should actually affect how we view the legitimacy of the prosecution is absurd.
5. The Prosecutors Tried to Bribe a Defense Lawyer
There have been suggestions in recent days that the prosecutors may have engaged in misconduct that could threaten the case. The most prominent claim is that a prosecutor at one point in a discussion with the lawyer for Trump’s co-defendant, Walt Nauta, brought up the fact that he is trying to get a seat on D.C.’s Superior Court.
On its face, this would appear to have been a routine, cordial exchange between two lawyers working opposite sides of a case, but it is being spun into something much more nefarious. Alan Dershowitz recently imagined that the prosecutor may have said, “Look, I know you’re up for a judgeship in the District of Columbia. Maybe you’d have a better chance of getting the judgeship if you flipped your witness and have him cooperate with us.”
Where to begin? The idea that a single career Justice Department prosecutor might be able to influence the judicial-confirmation process is far-fetched — all the more so since, by all available accounts at the moment, the White House went out of its way not to interfere with the department’s investigation. Even if the most uncharitable speculation were accurate, it is very hard to see how this would affect the outcome of the prosecution as a legal matter, since the supposed attempt at bribery clearly failed.
6. No Harm Done
This argument has been offered up, among others, by Florida senator Marco Rubio, who took aim at the fact that the indictment does not allege any harm that resulted from Trump’s retention of classified documents or any victims of his alleged misconduct. “ “What was the damage?” Rubio asked. “Was this stolen and sold to the Iranians, sold to the Saudis, given over to the Russians? That allegation’s not made in the indictment. No one’s made that allegation.”
I have several pieces of very bad news for Rubio. First, none of the statutes that the Justice Department used requires it to establish or even allege any harm resulting from Trump’s alleged misconduct. (This also means, at least in theory, that the government may very well have evidence on this issue that it has not made public but that it intends to introduce at trial.) Second, there was an obvious risk of harm that may very well have materialized if the Justice Department had not recovered everything from Mar-a-Lago, particularly considering the fact that the resort is a target for foreign spies, that some of the boxes were haphazardly stored in publicly accessible spaces on the property, and that Trump apparently enjoyed bragging to randos about all of the classified material in his possession.
More importantly, it is certainly the case that prosecutors often consider the harm — or lack thereof — as a discretionary consideration when evaluating whether to bring charges under statutes that do not strictly require it. But there are lots of federal criminal statutes like this, and a “no harm” rule would gut many of them. Federal wire fraud, for instance, does not require anyone to have suffered any losses; the crime is the fraudulent effort itself.
The same goes for other routinely used federal statutes, like the law that prohibits convicted felons from possessing firearms. By Rubio’s logic, we should decriminalize this conduct and simply rely on the statutes that kick in once those people have actually shot and perhaps killed someone. Somehow I doubt we will ever hear him advocate for this position.
7. This Is Election Interference
This has got to be one of the silliest possible arguments. Trump announced his 2024 election bid just days after the 2022 midterms, at a time when his public standing was at a low point because he was being publicly blamed for the party’s dismal showing in the election. The announcement also came after the FBI search of Mar-a-Lago, when he must have known that he was in serious legal jeopardy.
Under the circumstances, it is fair to assume that Trump was deliberately trying to complicate the Justice Department’s efforts to investigate and prosecute him by repositioning himself as Biden’s political adversary for the remainder of Biden’s term, precisely so that he could avail himself of this talking point. The notion that the department should have indulged this gamesmanship by sitting on potential criminal charges until after the 2024 election — for two years! — makes little sense, and if accepted, it would effectively create a unilateral option to obtain legal immunity for anyone with the resources to run for president.
It is very possible that this assortment of contrived and misleading arguments, along with others that have been bandied about since last week, will be enough to keep most Republicans on Trump’s side. We have seen this happen before under the most preposterous of circumstances, as when Trump claimed that he made the “perfect” phone call to Ukrainian president Volodymyr Zelenskyy and managed to rally Republicans to oppose his first impeachment. Motivated reasoning is a potent political drug. Still, these are not good arguments, which, by itself, is further evidence of the challenging path ahead for Trump.
More on Trump’s Indictment
- The Case(s) Against Donald Trump
- Hush-Money Trial Revives Doorman’s Trump-Love-Child Story
- Biden Needs to Talk About the Trump Prosecutions Before It’s Too Late
