Beyond The Trump Indictment- A Problem for Our Society

With all the existential issues (aren’t all issues existential these days?) homelessness, drug use, crime, immigration, housing, forest fires, the collapse of our educational system, the Chinese imperialist threat, the war in Ukraine, whether boys can be girls and girls can be boys, we now turn our gaze to … Donald Trump, …again.

Many say that we can focus on more than one thing.  We can walk and chew gum at the same time.  Sadly, we cannot.  As anyone knows who has not been vacationing in the Mohave desert for the last two weeks, Donald Trump, former President and current front runner in the 2024 election (as we are reminded in every news story), has been indicted for hubris and stupidity (oh, I’m sorry), the official charges are violation of the Espionage Act and conspiracy to obstruct justice and other stuff initiated by a government led by his former and prospective opponent, President Joe Biden.

Look, to be clear. I am no Trump fan. Being better than Hillary Clinton or Joe Biden is not particularly high praise. On the other hand, when anyone is persecuted by those who are supposed to be enforcing the law on an equal basis, it should require all of us to come to the defense of what our system of justice, if not for the accused, at least for ourselves.

United States v. Trump

To review the charges, I actually read the 49-page indictment (so you, my dear readers, don’t have to) as well as the Espionage Act, the Presidential Records Act and the Privacy Act.  But to spin it down to its basics, Trump is charged with 31 counts of having 31 classified documents that he didn’t give back, and as for the remaining six charges of (1) Conspiracy to Obstruct Justice, (2) Withholding a Document or Record, (3) Corruptly Concealing a Document or Record, (4) Concealing a Document in a Federal Investigation, (5) Scheme to Conceal, and (6) False Statements and Representations, these arose out of the same facts that Trump was being a jerk by playing hide the ball.

As for the Espionage Act, its purpose is to catch spies who give information to foreign countries which will do us harm, you know like Julius and Ethyl Rosenberg selling the Soviet Union our atomic bomb plans. Most of the section 793(e) under which Trump is charged contain words like “relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage or any foreign nation”.

However, it also includes one tiny little phrase at the end of paragraph (e) which says,  “Whoever having unauthorized possession of …any document…willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.”

Although the Special Counsel has not personally consulted with me, I suspect that this is where he is going.  But before we pass out the rope for the lynching, let me point out that there are difficulties, at least for me, as to whether Trump could “willfully retain” a document if he doesn’t know it exists.  All the “detail” of the indictment and “quotes” therein show that Trump didn’t want anyone messing with his boxes and had asked his lawyer who did review and segregate some documents, whether there was anything “bad in them”.  This shows that Trump doesn’t even know what documents he has, if any, which also shows that he cannot “willfully” retain them.

Also, the crime requires that Trump has to “fail to deliver it to the officer…entitled to receive it.”  Nothing in the statute says “how long” Trump has to deliver it to the officer…entitled to receive it.  Compared to Biden who has classified documents from the time when he was a Senator prior to 2009, does Trump get the same amount of time to deliver?  Look, I don’t write these statutes, I just read them and try to figure out what they mean, but I am sure that at $1000/hr. or so, his defense team can come up with this on their own.

Again, going to the document issue, are we looking at material that the disclosure of which is harmful to the United States?  We are never going to see these but are told that “they are extremely sensitive and could threaten the vital interests of the United States”.  As he announced the charges, the Special Prosecutor intoned knowingly to the masses and the potential jury pool:

“Our laws that protect national defense information are critical to the safety and security of the United States and they must be enforced.  Violation of these laws put our country at risk.”

Come on…Really?

The descriptions of the documents in the Indictment are vague, but from what even the Special Counsel asserts, fully 24 of the 31 documents refer only to “military activities of a foreign country” or “communication with a leader of a foreign country”.  One would think that the foreign country knows what its military activities are and certainly a foreign leader would know what communications he had with the United States.  So how secret is it if the foreign country knows what we know?  It seems like the only people kept in the dark are you and me.

One of the other documents claims that it “concerns nuclear weaponry of the United States”. Wow, this really sounds significant except that it is undated.  What kind of important secret document doesn’t even have a date on it?  So, when is this nuclear weaponry that the document discusses? 2020? 1999? 1945?.  Other documents involve intelligence from 2017 or 2018.  The most recent is 2020.  Does the information of what was going on in a foreign country that the foreign country would have known at the time matter anymore?

Ok, ok, I am not suggesting that perhaps the escape of these documents from the White House may not be important or maybe even criminal, but I am suggesting that maybe we should get real and not get spazzy, projecting the collapse of humanity just because some bureaucrat stamped a document, “secret”.  We all know that Washington D.C. is a leaking sieve of confidential and “secret” information to the press without a whole lot of effort to figure out who did it much less to send anyone to the slammer for 20 years.

As for what I call the “hide the ball” charges, the Grand Jury and the FBI subpoenaed Trump asking for classified documents.  Despite the subpoena to Trump, for some reason, Trump was never required to personally respond under oath. The government allowed his lawyers to handle it for him.  (What were they thinking!!)  So, a lawyer, identified in the indictment as attorney #1, looked through a bunch of boxes and pulled out all of the classified information, and turned them over to the FBI.  Apparently, Trump asked this lawyer at some point if they just couldn’t hide the documents and say they didn’t have them like Hillary Clinton’s lawyers did, but Attorney #1 said no, and there is no allegation that Attorney #1 hid or withheld any documents that he was aware of.  

The problem was that Trump not wanting anyone to touch his stuff had his guy (and co-defendant), Walt Nauta, move some of the boxes so that Attorney #1 couldn’t see them or find any classified information.  Then, to confuse matters more, Attorney #1 asked Attorney #3 to submit a certification under oath for which she had no personal knowledge that:

a.       “A diligent search was conducted of the boxes that were moved from the White House to Florida”;

b.      “This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena; and

c.       “Any and all responsive documents accompany this certification.”

So, Trump never violated the subpoena or lied to the government “personally” which leaves the Special Counsel to contend that Trump committed all of these offenses indirectly…by hiding the boxes from Attorney #1 so that when Attorney #1 would ask Attorney #3 to make a sworn statement of facts for which she had no personal knowledge but relied on Attorney #1 who thought the statements made by Attorney #3 were accurate, but weren’t.  But we will also leave that to the $1000/hr. lawyers to argue the legal implications of those facts as we currently know them, which may all change in the months and years to come.

Now, no matter what happens to Trump, his documents or his ego, this case raises greater issues involving justice, power and how our government is treating its subjects and what we are going to do about it.

No One is Above the Law.

The Government, Democrats and Media assert with breathless solemnity that no one is above the law while the Trumpsters claim that the government, run by Trump’s enemies, is out to get him.

Hey, the mantra that “No one is above the Law” sounds really good. Let’s do that.  We all should be able to buy into this…except that it is not true.

We have so many laws that there is no way that we as a society can strictly enforce all the federal, state and municipal laws that we have passed.  If you think that no one is above the law, think back to when you were speeding, pulled over by the police, given a warning and told to have a nice day instead of getting a $75 ticket that you richly deserved.  You would be “above the law” in that situation. Or how about the millions of illegal immigrants, dreamers, undocumented noncitizens, or undocumented individuals,” or whatever the current acceptable label is?  Whatever those millions of individuals are called, their presence in this country illegally without adverse consequences is “above the law”. 

James Clapper, the former Director of National Intelligence in the Obama administration, was asked if the NSA collected “any type of data at all on millions or hundreds of millions of Americans”.  Clapper responded “no, not wittingly” despite the fact that he knew that the National Security Agency was in fact collecting in bulk, domestic call records and other various internet communications on millions of Americans. After being outed by Edward Snowden who was labeled a spy for showing us that our DNI was a liar, Clapper later admitted to perjury claiming that he “responded in what I thought was the most truthful, or least untruthful manner by saying, ‘no.”  He sure as hell was above the law. Clapper was last seen as an “analyst” for CNN telling us as recently as 2020 that the Hunter Biden laptop had all the markings of Russian disinformation.

Is our judicial system being abused to punish the political opponents of the party in power?

My short answer is yep, and the problem is getting worse.  When did this all start, you say? Or perhaps you didn’t say, but I am going to tell you anyway.

I go to the 1980s. As Reagan changed the direction of the country, his Secretary of Labor, Ray Donovan, worked hard to relax federal restrictions on child labor and the minimum wage and other policies that the Unions believed were setbacks against worker rights, and the Unions with support from the New York legal system were out to get him.  Investigated and cleared several times, he and seven other men were eventually indicted in 1984 in New York for corruption and mob connections.  After an 8-month trial in 1987 and who knows what legal costs, Donovan and his codefendants were found not guilty after only 10 hours of jury deliberations with one juror commenting that the charges were so frivolous, they never should have been brought.

After being under attack since his nomination for the Secretary of Labor in 1981, Donovan famously put forth the dilemma for falsely accused public servants when he said. “Which office do I go to, to get my reputation back?”

1987 also brought the Iran-Contra scandal where officials from the Reagan administration had skirted a Congressional prohibition against helping the Nicaraguan contras.  Secretary of Defense Casper Weinberger who had left the Reagan administration in 1987 was indicted at the age of 75 in 1992 on five felony charges related to the Iran-contra affair, including accusations that he had lied to Congress and obstructed Government investigations, rather than being charged with some substantive crime like supporting the Contras, which he did. We see only allegations of misrepresentation and obstruction which are the commonplace charges of the day.

Prosecutors brought an additional indictment just four days before the 1992 presidential election which Republicans claimed to be a political attack contributing to President Bush's defeat. After the election, the latter charges were thrown out as violations of the statute of limitations which could have been determined easily by the prosecutor that filed them, but the damage to Bush was done.

John Poindexter, NSA Chief, and Oliver North were also prosecuted and convicted of lying to Congress, obstructing the Congress and destroying documents.  Both convictions were later overturned as a result of prosecutorial misconduct.

During the Clinton administration, the tactic was renamed “the politics of personal destruction”. This was refined by the Clintons who sought to personally destroy any of their opponents including those who challenged their questionable conduct.  Unfortunately for them, the politics of personal destruction turned against them in the various Whitewater, cattle futures, and Vince Foster investigations along with their many other scandals.

Let us remember, just because the judicial process is activated unfairly against a person to destroy them, that doesn’t necessarily mean that they don’t deserve it or didn’t do it, but such tactics envelop not only the guilty, but the innocent, and naïve as well. 

Clinton was impeached in the House for obstruction of justice and perjury for testifying under oath that he did not have sexual relations with Monica Lewinsky but was not convicted in the Senate.  However, Clinton’s problems only ended at the end of his term when facing an indictment by Independent Counsel, Richard Ray. Clinton admitted to lying under oath, agreed to a $25,000 fine and in a symbolic penalty for a man with no intention of ever practicing law again, agreed to have his Arkansas law license suspended for 5 years.

The Independent Counsel statute which had been authorized in the late 70’s under the Carter administration and had served as the basis for many of the political persecutions in the Reagan and Clinton administrations, finally expired in 1999 under concerns that the costs of rooting out purported criminal violations of political figures and the appearance (real and imagined) of prosecution for political purposes were higher than the benefits.

But while the specific Independent Counsel statute was gone, the practice of using criminal proceedings to take out political opponents was firmly in place as evidenced by the indictment of Tom De Lay, the Republican House Majority Leader, by a liberal Harris County, Texas prosecutor.  Forced to resign his seat in Congress, his conviction was later reversed, but his career was over.  

Not being able to get Dick Cheney, Scooter Libby, a Cheney associate, was convicted of obstruction of justice (of course) and perjury for testifying that he did not remember if he disclosed the name of CIA agent Valerie Plame or not. It turned out that the special prosecutor already knew even before Libby testified that it was someone else who had leaked the information. Libby’s sentence was commuted by George Bush, but his career was over.

Ted Stevens, a seven term Senator from Alaska was convicted in late October 2008 on seven counts of failing to properly report gifts relating to a remodeling of his Alaska home. In his reelection bid 8 days later, he lost to Democrat, Mark Begich by 3724 votes or 1.4%.  Steven’s conviction was later vacated as a result of prosecutorial misconduct of hiding evidence which if disclosed would have resulted in Steven’s acquittal.  By the way, Begich provided the 60^th vote in the Senate, the required margin of victory, for Obamacare in 2010.  Instead of being in the Senate serving in his 8th term, Stevens died in a plane crash in Alaska in 2010.

In 2010, Bob MacDonald, a rising star in Republican politics, was elected governor of Virginia.  In 2014, he and his wife were indicted on 14 different counts relating to their acceptance of more than $135,000 in gifts.  Convicted and sentenced to 2 years in prison, the Supreme Court reversed the conviction in 2016, but his political career was over. McDonnell said in a 2017 interview that prosecutors threatened his children to be careful of conversations with their parents lest the children be charged with obstruction of justice. MacDonald and his wife divorced in 2020.

Had enough?

The facts of the Clinton email case make Trump moving his boxes around look like a criminal amateur.  Hillary Clinton was accused of improper handling of classified material on her server, and then while the production of her server was under a lawful subpoena, she or her staff intentionally destroyed the evidence by bleach biting her server.  Cell phones under subpoena with potential incriminating evidence were also destroyed by stomping on them.  She was not charged because James Comey, the director of the FBI, who leaked confidential information to the press to get a Special Prosecutor appointed in the Russia collusion case, determined she “didn’t mean any harm”.

This was followed by the Russian collusion hoax, the Michael Flynn perjury conviction (later reversed) whose only “crime” was trying to help the FBI by talking to them, and the indictment and guilty pleas or convictions of nine others many under with the condition that they “cooperate” with the prosecution on matters relating to Trump. Although not criminal, let’s not forget the two Trump impeachments, one after he was no longer President.

Since Trump has left office, he has been charged in a New York state court for violating a federal statute by paying a porn star not to tell that he had an affair. Essentially this is charging a victim of blackmail for paying the blackmail money.  Also, in New York, Trump was charged with fraud by allegedly inflating the value of his assets to secure loans for which he has paid back or is continuing to pay and for which no lender has complained.  These cases were brought by the New York City DA and the New York Attorney General who ran on campaigns that, if elected, they would get Trump.

The January 6th protesters, many of whom were Trump supporters, were subject to a nationwide manhunt many of whom committed the offense of simple trespass.  Some have been held in jail without bail for longer than they would have served had they simply pled guilty.  Many subsequently did plead guilty in order to just end it and be able to go home.

Meanwhile, Antifa and other rioters who tried to burn down the Portland Federal Courthouse, or assaulted police throughout the country, if arrested at all, were released without bail and never to be brought to justice.

This brings us back to today where Trump has been charged with 37 counts of federal crimes while the crimes against Hunter Biden for tax evasion of millions of dollars and lying on a federal document related to a gun purchase will result in no jail time and his entry into a “diversion program”.  We also hear whistleblower testimony coming out just today that IRS investigators were prevented by administration officials from investigating further crimes and were threatened that to move forward would be career killers. 

Meanwhile, the FBI is obstructing Congress from getting information on an alleged $10 million bribe paid to the President and Hunter Biden related to the Ukrainian oil company, Burisma, where Hunter Biden was a director. Joe Biden had bragged during the Presidential campaign that he had gotten the Ukrainians to fire a prosecutor who was investigating corruption of Burisma in exchange for $1 billion dollars in US aid.

Is there a double standard between investigations of Republicans and Democrats?  You bet.  Are the Democrats currently using the justice system to punish their political opponents?  Absolutely, and the American people know it. 

Consequences

Who will serve the country?  The initial consequences are easy to see.  Those who participate in the political process are targeted, and even if charges are dropped or subsequently found innocent, they often suffer financial ruin merely by being required to participate in the legal process.  Michael Flynn, accused of lying to the FBI, pled guilty when threatened by prosecutors that they were going to charge his son with some baseless charge.  The agents who interviewed Flynn believed he was truthful but was overruled by political superiors. As it was, he lost his savings and his home financing his defense. Lawyers and investigators are an expensive but necessary expense when threatened with prison and crippling fines.  Very few have what they call F--- Y—money, like Trump, to fend off political attacks in court.

Who would be dumb enough to cooperate with the FBI or Congress?  One thing that I would anticipate going forward is that the public would no longer cooperate with the FBI or Congress.  If lying to the FBI or Congress is going to be the go-to basis for oppressing the people, who, if they are engaged in any type of activism or prominent political position, would ever put themselves at risk by talking with the FBI or Congress. We can see this already.  In a deposition by Trump, he took the 5^th Amendment against incrimination over 400 times.  Afterward Trump said, “I once asked, ‘If you’re innocent, why are you taking the fifth amendment?’ Now I know the answer to that question.  “When your family, your company, and all the people in your orbit have become the targets of an unfounded, politically motivated witch-hunt supported by lawyers, prosecutors, and the Fake News Media, you have no choice.” 

He is not alone. James Comey, in testimony before Congress concerning activities that he had personally engaged in said I don’t remember, I can’t recall, or I don’t know 245 times.  Hillary Clinton in response to a Judicial Watch lawsuit answered that she did not remember to 21 out of 25 questions.  These people are not stupid.

The People can submit. As in totalitarian countries, citizens can submit and live lives in quiet desperation hoping not to draw attention to themselves.  They don’t speak.  They have no opinions. They do not have a say in how to live their lives except through approved governmental programs and policies.  Can’t happen here, you say. Why not?

The People can fight.  This consequence can be very dangerous for society.  This approach does not necessarily lead to revolution although, it could.  There could be peaceful protests.  Occupy Wall Street and Capitol Hill Autonomous Zone (CHAZ) in Seattle were examples of popular opposition to authority.  There could be noncompliance with governmental edicts such as quarantining ourselves as a result of COVID or refusing to get government mandated vaccines. Where have we seen that before? Absent confidence in the integrity of our leaders or that if there is trouble, we would get a fair shake, there could be tax protests or assemblies at or in State Capitals.  The people could storm school board and city council meetings uninhibited by any respect for governmental authority.

The People could respond in kind.  If the new rule is that there is no equal justice, and it is acceptable to criminalize your political opponents, people could respond in kind.  When another party or political persuasion takes power, they could investigate and jail all of those who opposed them or persecuted them when they were in power.  Revenge.  Of course, revenge is not a game that ends. 

Knowing that their freedom and property would be at risk with a new incoming regime, the party in power will do whatever it takes, legal or illegal, to preserve their personal liberty and financial fortunes.

What should we do?  We need to recreate the principle that justice must be administered with regard to what you did, not who you are.  Republican or Democrat, rich or poor, black or white, we must all be evaluated by the same standards by the Prosecutors, the Courts, Law Enforcement and our elected leaders.

We need to get rid of those who do not believe or act in accordance above.  This will take time and steadfastness to the rule of law even if those who violate it are not supporters of our political persuasion.

We must not engage and punish those who do engage in the politics of personal destruction even if politically and personally, we would be just fine to have them destroyed.  To save our country and ourselves, we have to be better and steadfast.  We need to restrain our passions. If we give in to the cries of “Lock Her Up, Lock Her Up”, the next people that get locked up may well be us.