Donald Trump’s scheme to steal government documents has become so blatant and undeniable that many of his most habitual defenders have abandoned any legal defense and retreated to a sort of “boys will be boys” rationalization. Sure, maybe Trump took some boxes he wasn’t supposed to, and held on to them after the government demanded their return, and ordered a wee cover-up to throw the FBI off the trail. But he didn’t mean anything by it. He just likes boxes is all.
Smith’s indictment leaves alone the question of why Trump so persistently defied government demands. His defenders have filled in this absence by treating the most innocuous explanation as proven correct. But this defense is less certain than its proponents pretend, and more importantly, it hardly provides any basis for getting him off the hook.
The early version of this rationalization posited that Trump never even bothered to look through the boxes he insisted on keeping. “I can’t imagine you ever saying, um, ‘Bring me some of the boxes that we brought back from the White House, I’d like to look at them,’” Sean Hannity suggested to Trump in March. “Did you ever do that?”
As it turns out, Trump did exactly that. “I think he wanted to pick from them. I don’t imagine him wanting to take the boxes,” Trump’s valet, Walter Nauta, wrote in one text message obtained by Special Counsel Jack Smith. The indictment also depicts Trump making a “plucking motion” to his lawyer in relation to the boxes, as if to say, “If there’s anything really bad in there, like, you know, pluck it out.”
The defense has fallen back to insisting that at least Trump didn’t steal intelligence secrets and sell them to hostile foreign powers. “The rumors at the time that this broke was that he was selling off our nuclear codes to the Chinese or some such nonsense. And it turns out that was all crap. The theory I had from the beginning was correct that basically Trump was like, ‘I like that document, it’s nice,’” claims Ben Shapiro. “That was the actual reason he had documents. Not for any nefarious purpose, but because Trump likes things.”
“As usual, Mr. Trump is his own worst enemy,” laments the Wall Street Journal, depicting Trump once again like a clumsy but lovable Labrador retriever, stumbling innocently into trouble.
While it’s highly unlikely Trump sold secrets to foreign powers, we don’t actually know this for a fact. He was definitely selling access to a club where those secrets were scattered around loosely and where he conducted state affairs out in the open.
Smith’s investigation did find Trump using one highly sensitive document — almost certainly the Pentagon’s contingency plan for war with Iran — to try to plant stories in the press embarrassing General Milley. This hints at Trump’s motive for combing through the boxes, or at least one of his motives.
The Journal insists that the FBI got all its documents back, so there was no need to punish Trump any further:
It was once unthinkable in America that the government’s awesome power of prosecution would be turned on a political opponent. That seal has now been broken. It didn’t need to be. However cavalier he was with classified files, Mr. Trump did not accept a bribe or betray secrets to Russia. The FBI recovered the missing documents when it raided Mar-a-Lago, so presumably there are no more secret attack plans for Mr. Trump to show off.
The FBI got all its files back in the raid, so why push it?
One thing to keep in mind is that, when the raid occurred last August, the Journal denounced it hysterically. The Journal’s editorial, headlined “The FBI’s Dangerous Search at Trump’s Mar-a-Lago,” warned ominously that “the Justice Department is unleashing political furies it can’t control and may not understand.”
“No former president who was disliked by many — not Clinton, Reagan, nor FDR — had his home invaded by a squad of FBI agents,” added Journal columnist Daniel Henninger. “This should never happen in the U.S. End of discussion.”
It seems that the Journal regards any effort to make Trump obey the law as an overbearing abuse of power.
More importantly, the Journal’s claim that the FBI recovered all the missing documents is not true. The document Trump used to try to smear Milley — the Iran war plan, almost certainly — remains missing. Given the Journal’s ultra-hawkish stance on Iran, you’d think it would find this detail more concerning. You can only imagine the conservative response if, say, Hillary Clinton had stolen the Pentagon’s plan for fighting Iran and it remained missing a year later.
Trump’s defenders simply assume that none of the intelligence he stole was compromised. The whole reason the government has laws restricting its national-security secrets is that letting people walk out with boxes of highly sensitive documents is risky.
If we could assume it was completely safe to let somebody store sensitive government secrets in places like a bathroom or the ballroom stage of a social club that’s world-famous for the conduct of foreign policy in an unsecured environment, we wouldn’t need laws restricting those documents.
The truth is we don’t know why Trump was so insistent on stealing high-level secrets that he put himself at legal risk, and we don’t know what happened to those secrets as a result. His defenders are filling in those blank spaces with the most benign interpretation. Their analysis then treats the factual elements of the case — Trump’s extensive defiance of the law — as marginal, while treating assumptions about his intent as central.
Trump should be permitted to violate the law because he wouldn’t do anything corrupt or dangerous is one of the most desperate defenses you can imagine.