Former President Donald Trump is being investigated for — but has not been charged with — willfully retaining and mishandling government documents that don't belong to him, some of them very highly classified, and obstructing the government's repeated efforts to get them back from his unsecured Florida club and residence. His legal strategy in the face of potential charges for some serious federal crimes is fluid and slightly baffling.
Trump's "hastily assembled" legal team has "offered up a variety of arguments on his behalf that have yet to do much to fend off a Justice Department that has adopted a determined, focused, and so far largely successful legal approach," The New York Times reports. His lawyers appear to be settling on pushing "a broad view of presidential power," The Associated Press adds, arguing Trump had "absolute authority to declassify whatever he wants" and that he can still shield documents behind a curtain of executive privilege, even from the executive branch.
At the same time, Trump is seeding his statements and legal briefs with complaints that he's being singled out for political persecution. Is he asking for equal justice before the law, or special treatment as a former president, or something else?
Trump is arguing he's above the law
Trump's lawyers appear to have landed on a "defense strategy anchored around presidential powers, a strategy employed during special counsel Robert Mueller's Russia investigation when Trump actually was president," AP reports. And in this case, "it's perhaps not surprising that Trump's legal team might look for ways to distinguish a former president from other citizens given the penalties imposed over the years for mishandling handling government secrets," including years in jail.
If any lawmaker or other government official "walked out intentionally with even one document," Rep. Adam Kinzinger (R-Ill.) told NBC's Meet the Press on Sunday, "and our organization came to us and said you have to give this document back and we refused to do it for years, we'd be in real trouble."
"There seems to be a huge disconnect between what's actually happening — a real live court case surrounding a real live investigation — and what they're actually doing, which is treating it like they've treated everything else, recklessly and thoughtlessly," Chuck Rosenberg, a former U.S. attorney and FBI official, told the Times. "And for an average defendant on an average case, that would be a disaster."
The underlying problem for Trump is "when someone is no longer president, they're no longer president. That's the reality of the matter," Oona Hathaway, a Yale Law School professor and former Defense Department lawyer, tells AP. "When you've left office, you've left office. You can't proclaim yourself to not be subject to the laws that apply to everyone else."
Trump is just asking for blind justice
"We aren't defending Mr. Trump's behavior in any of this," but "it's hard to believe that a dispute over documents would yield a criminal indictment," The Wall Street Journal said in an editorial. If the Justice Department were to charge Trump, "Attorney General Merrick Garland would have to explain to the public why Mr. Trump's behavior was so much more nefarious than other cases of mishandled classified documents," including Sandy Berger's misdemeanor plea "and Hillary Clinton, who got off with a sanctimonious lecture from then FBI director James Comey."
"As always with Mr. Trump, he seems to have been his own worst enemy in this dispute," having been "sloppy, even cavalier, in storing the documents," even failing to "tell the truth about what was classified or what he had turned over to the National Archives before the search," the Journal editorial board conceded. But the Justice Department had other options than raiding Trump's home "like they would a mob boss," they added. "If you're going to indict a former president, you'd better have him dead to rights on something bigger than mishandling documents."
These are clearly just stalling tactics
Trump is using the same "largely successful strategy" he consistently used as president to fend off congressional oversight: "Stonewall until the fight reached the courts," the Times reports. "Even if judges eventually rejected his legal claims, he could use the slow pace of litigation to run out the clock." In this case, Trump is asking that an outside special master examine the seized documents before the DOJ investigators get a crack at them.
"It's definitely a delay tactic," CNN's Dana Bash agreed Monday. "What the Trump team is clearly trying to do is play into that overarching strategy about the process."
The request for a special counsel in this context is "strange," Duke criminal law professor and former federal prosecutor Samuel Buell tells the Times. "I think we might be taking this a little too seriously in terms of trying to actually puzzle it through," he added. "The more you think about it, the more it just doesn't fit normal procedures. So it could just be throwing dust in the air."
Trump has no coherent legal strategy
"Trump and a small circle within his group of current advisers maintain that he was entitled to keep documents he took from the White House, or that he had already declassified them, or that they were packed up and moved by the General Services Administration — an assertion flatly denied by that federal agency," the Times reports. But Trump is his own most influential counsel, and his "legal filings in various cases read like campaign rally speeches that he had dictated to his lawyers," this case included.
The Trump team's legal arguments do "seem to be more of a political argument than a legal argument," University of Virginia law professor Ashley Deeks tells AP. "The president's defense team seems to be trying to point out the magnitude of proceeding with this case rather than articulating a clear legal defense."
Trump sees Garland "not as the federal government's chief law enforcement officer, but merely as a political foe and someone with whom he can haggle with about how much anger exists over the situation," the Times reports, citing people familiar with Trump's thinking. Before Garland announced he would unseal the search warrant, a Trump intermediary "reached out to a Justice Department official to pass along a message that the former president wanted to negotiate, as if he were still a New York developer," leaving senior Justice Department leaders "befuddled" and baffled over what "Trump was trying to accomplish."
None of this is to say Trump won't succeed in his machinations, defense attorney Stanley Brand tells The Washington Post, "because to the extent this gets caught up in a litigation muddle, as do so many things that happen around him, it's to his benefit."