Justice Delayed Is . . .Trump’s Ultimate Survival Strategy
In an effort to avoid punishment for having taken a multitude of presidential documents when he left the White House, Donald Trump is now putting on display everything Roy Cohn taught him about how to evade laws and escape justice. Under the Presidential Records Act of 1978 all official records of the President and Vice President are deemed to be the property of the U.S. government and are required to be maintained and surrendered to the National Archives and Records Administration (NARA) at the conclusion of their terms in office. Failure to comply with this statute can result in fines and up to three years in prison.
From the moment he was elected Trump had been advised of his responsibility to maintain government records. In addition, before he moved out of the White House he had been approached by NARA to arrange for the transfer of all government records remaining in his possession. Like so many laws, regulations and practices governing presidential action Trump routinely ignored his duty to preserve official records that came into his possession. He would routinely tear up paper documents or flush them down a toilet. He also excluded all of his aides from attending his meetings with Vladimir Putin (and perhaps other heads of state) and insisted that the interpreters who did attend those meetings surrender their notes to him (all of which seemed to have vanished). Similarly, there are no records of Trump’s telephone calls while the U.S. Capitol was under attack on the afternoon of January 6, 2021. In short, throughout his entire presidency, he acted as if the Presidential Records Act did not apply to him.
Notwithstanding his well-chronicled inclination to suppress or destroy evidence of his dubious and/or unlawful actions, Trump has also been described as a “pack-rat” who likes to surround himself with historic memorabilia. This may explain why he came to have so many government records in his personal possession at the conclusion of his presidency as well as his resistance to complying with NARA’s request that those documents be returned to the nation’s archives. His actions might also be explained by a fervent belief that Roy Cohn taught him how to avoid being held accountable for his misdeeds. After all, he successfully escaped not one, but two, impeachment proceedings as well as an obstruction of justice charge arising out his efforts to impede the Mueller investigation. As might be expected, there are others who believe that more nefarious motives explain his actions.
When faced with potential legal jeopardy, Trump’s instinctive reaction is to deny and lie. These tactics were recently parodied by George Conway in a column that appeared in The Washington Post. Trump is also prone to disparage and threaten his accusers. We’ve seen these tactics in his responses to accusations by women alleging that he sexually assaulted them. Trump also frequently seeks to cause those with knowledge of his misdeeds to decline to speak or even to lie for him. This is frequently accomplished by offering to pay the legal expenses of those who side with him and by taking swift revenge on those who don’t. This tactic was on full display during the Mueller investigation and during his first impeachment proceeding. With respect to those of his accusers who are not deterred by these tactics, he frequently seeks to use his negotiating skills to buy his way out of the problem. He employed that tactic in his efforts to minimize the fallout from his Trump University scam. Since entering politics Trump has also tried to portray himself as a victim who is being unfairly attacked. If all of these efforts prove unsuccessful, he invariably seeks sanctuary in the courts where he employs a multitude of dilatory tactics in an effort to exhaust the patience and/or resources of his accusers.
In his latest crisis he has sought the protection of the courts by commencing an action to have a Special Master appointed to review the records seized by the FBI on August 8th from his residence in Mar-a-Lago. This is a patently frivolous action with little ultimate chance of success. In the past, petitions for the appointment of a special master largely have been limited to efforts to prevent law enforcement officials from reviewing documents seized from an attorney’s offices which might include records pertaining to clients not involved in the matter under investigation. Trump however, improved his chances of not having his suit summarily dismissed by having it brought before a judge whom he had appointed following his loss of the 2020 election.
I have been asked on several occasions whether the Department of Justice is ever going to prosecute Trump. While there has been ample reason for pessimism, I am no longer plagued by that prospect. It now seems overwhelmingly clear that the DOJ will initiate a criminal proceeding against Trump over his mishandling of his presidential documents. I am not as sanguine about the likelihood of the DOJ’s indicting him for any of his many efforts to overturn the results of the 2020 election. That’s because Trump, with only two exceptions (his call to Brad Raffensberger on January 2, 2021 and his speech at the “Stop the Steal” rally on January 6, 2021), had others undertake those efforts in his behalf. Thus, while many of Trump’s close associates will likely be indicted for trying to overturn the results of the 2020 election, unless they turn on him, there’s a good chance he may escape accountability for his actions.
Punishment for his violations of the Presidential Records Act, however, will be far more difficult for Trump to evade. That act places the responsibility for maintaining and surrendering presidential records on the President himself. Therefore, Trump remains responsible even if the actual acts of destroying or mishandling of the documents were perpetrated by others. Also, violations of that act do not require proof of mal intent. The mere showing that records were not maintained or timely surrendered to NARA is sufficient to secure a guilty verdict. Even proof of a good-faith effort to comply with the statute would not prevent a guilty verdict. As more fully explained below, the very history of NARA’s and the DOJ’s efforts to obtain the missing records clearly negate any showing of good faith on Trump’s part.
The punishment for violations of the Presidential Records Act are not particularly onerous. Indeed, most claims for mishandling government documents result in little, if any, prison time. Nevertheless, (a) the large quantity of documents involved (approximately 11,000 in addition to those previously surrendered), (b) the highly classified nature of over 300 of them, (c) Trump’s reported efforts to destroy official records and (d) his efforts in resisting the return of those documents over a period of 18 months seemingly point to the imposition of a maximum penalty.
Violations of the Presidential Records Act, however, are probably the least of Trump’s worries. In seeking its warrant to search Mar-a-Lago the DOJ cited two other crimes which it contended would be evidenced by the materials to be found in its search: obstruction of justice (18 U.S.C. Section 1510) and violations of the Espionage Act of 1917 (18 U.S.C. Sections 793, 1519 and 2071). The former is punishable by a fine and/or up to 5 years in prison and the latter is punishable by up to 10 years in prison. It’s altogether possible that Trump could be found guilty of multiple counts of each of these statutes.
Unlike the Presidential Records Act, both obstruction of justice and violations of the Espionage Act require proof of intent to violate the statute. Intent is often difficult to establish especially in the case of someone, like Trump, who has been schooled to have others do his dirty-work and who takes care to stay removed from the actual violations of the law. In the case of the documents taken to Mar-a-Lago, however, he may have relaxed his customary defensive efforts, perhaps laboring under the mistaken belief that copies of documents given to him at his daily security briefings were his property. He is reported to have voiced this belief in conversations with White House Counsels, Pat Cipollone and Patrick Philbin, who were reportedly advising him to surrender those records to NARA.
In an affidavit in support of its petition for a search warrant and in a brief submitted in response to Trump’s suit for the appointment of a special master the DOJ laid out the time-table of events leading up to its search of the Mar-a-Lago premises on August 8th. The salient events listed in those documents are as follows:
• In January 2021, NARA sought to arrange for Trump’s surrender of Presidential records;
• Throughout 2021 NARA continued to negotiate with Trump regarding the surrender of his presidential records;
• On January 18, 2022 Trump relented and provided NARA with 15 boxes of documents, some of which had been torn and taped back together, including 184 classified documents, 67 of which were marked “Confidential”, 92 marked “Secret”, and 23 marked “Top Secret;”
• On February 9, 2022 NARA sought the assistance of the DOJ after finding documents classified as “National Security Information” comingled with other documents and not finding the letter to Trump from Kim Jung Un reported to have been displayed at Mar-a-Lago;
• On May 11, 2022 Trump was served with a grand jury subpoena seeking all additional classified documents removed from the White House;
• On May 25, 2022 Trump attorney, Evan Corcoran, wrote to the DOJ proclaiming that Trump had been acting “in good faith” with respect to the return of his presidential records and asserting that Trump possessed the power to declassify all documents in his possession (although the letter does not assert that Trump actually exercised that power);
• On June 3, 2022 Jay Bratt, Chief of the DOJ’s Counterintelligence Division, visited Mar-a-Lago for the purpose of inspecting the storage of Trump’s documents. He and the three members of his team were shown a storeroom in the basement where Trump’s documents were stored but were not allowed to inspect them. Trump was present during that encounter and was represented by attorneys Evan Corcoran and Christina Bobb. They presented Bratt with a Redweld folder containing 35 additional classified documents and a letter (drafted by Corcoran and signed by Bobb) stating that Bobb was the custodian of the documents, that she had conducted a diligent search and that, to the best of her knowledge, there were no further classified documents being held at Mar-a-Lago;
• On June 8, 2022 Bratt wrote to Corcoran and Bobb stating that Mar-a-Lago is not an authorized location for the storage of classified information and requested that all documents located there be preserved;
• On June 22, 2022 the Trump Organization (which owns Mar-a-Lago) received a grand jury subpoena for surveillance recordings at Mar-a-Lago;
• On August 5, 2022 Magistrate Judge Bruce Reinhart approved a warrant for the DOJ to conduct a search for classified documents at Mar-a-Lago; the warrant also covered all documents stored together with classified documents;
• On August 8, 2022 a team of FBI agents conducted a search of Mar-a-Lago removing approximately 30 boxes of materials, some of which were retrieved from a closet in Trump’s personal office and three of which were found in Trump’s personal desk along with three of Trump’s passports. The recovered documents included numerous sets of classified materials, some of which were labeled “Top Secret;”
• On August 22, 2022 Trump filed a lawsuit with U.S. District Court Judge Aileen Cannon seeking the appointment of a special master to review the documents taken from Mar-a-Lago before the DOJ would be allowed to review them;
• On August 29, 2022 the DOJ advised Judge Cannon that a document review team, not a part of its investigation, had already screened the documents and identified a few documents that might be covered by an attorney-client privilege;
• On August 30, 2022 the DOJ responded to Trump’s motion for the appointment of a special master in which it argued that Trump is not the owner of the documents and therefore had no standing to seek their return. In addition, it contended that “executive privilege” had already been waived by the Biden administration and in any event does not preclude a review by the DOJ.
• On August 31, 2022 Trump’s attorneys filed an answering brief in which they argued that the DOJ’s investigation is politically motivated, that the withholding of the documents is no more serious than failing to return a library book and that the DOJ cannot be trusted not to make selective politically-motivated disclosures of the seized documents .
On September 1, 2022 Judge Cannon heard oral arguments on Trump’s motion for the appointment of a special master. At that hearing she ordered the publication of a detailed schedule of documents seized by the DOJ and stated that she would issue her ruling in the coming days in which she would likely grant Trump’s request for the appointment of a special master. Anticipating that Judge Cannon might accede to Trump’s request, the DOJ requested that the person she appoints already be cleared to review highly classified material and that his or her review be limited to 30 days.
The list of documents seized by the FBI was released late last week and The New York Times published a damning article laying out the nature and storage location of the documents. Most notably, it revealed that highly classified documents were intermingled with news clippings and other personal items. Perhaps most shocking was the revelation that there were 48 empty folders specifying classified documents and another 42 empty folders for documents specified to be returned to the Department of Defense.
On Labor Day, Judge Cannon issued a 24-page written decision in which she order the appointment of a special master to review all 11,000 document seized by the FBI on August 8th for the purpose of identifying personal documents as well as those covered by attorney-client and executive privileges. Rather than appoint an individual to serve as the special master, Judge Cannon ordered the parties to meet and agree upon a person to serve in that capacity as well as establish protocols for the special master’s actions. She ordered that the agreements of the parties be presented to her on September 9th.
It seems highly unlikely that Trump’s attorneys will agree to the parameters suggested by the DOJ during the oral argument for selecting and governing the actions of the special master. Instead they will contend that those parameters are far too restrictive. From the tortured logic that Judge Cannon employed to reach her decision (as more fully described below)Trump’s attorneys have good reason to expect that if the decision is left open for the Judge, she will impose parameters that are likely to cause the review process to take several months.
Judge Cannon decision appears to be based on the thought she expressed at the oral argument; namely, that “there is no harm” in delaying the FBI’s investigation. Her decision skirts the principal danger that Trump’s egregious mishandling of the documents poses a serious threat to national security that must be immediately investigated. She does this by permitting the Director of National Intelligence, as well as the DOJ’s Counterintelligence Division, to continue to conduct their investigations while barring the DOJ’s Criminal Division from using the seized documents in its continuing investigations of Trump’s actions. By any measure, Judge Cannon’s decision is a gut punch to the rule of law as any other defendant who did what Trump has done would be immediately incarcerated. It also ignores that there is no justification for treating the DOJ’s Criminal and Counterintelligence Divisions differently.
Even the “no harm” standard employed by Judge Cannon is applied unequally. Trump never argued that he had any legitimate purpose for removing and maintaining the government’s documents. Nor did he argue that the seized documents include some that might be protected by the attorney-client privilege. The harm which he argued was that the FBI might selectively leak documents which it seized to embarrass him perhaps intending to refer to communications regarding his taxes alluded to in Judge Cannon’s decision. While leaks by government officials are not uncommon, Trump cited no basis for asserting that the current DOJ has been guilty of doing so. Moreover, being embarrassed by the revelation of truthful facts is not a cognizable harm under the law.
Judge Cannon’s decision views the principal harm to Trump to be the DOJ’s assertion of criminal charges against him based upon documents covered by “executive privilege.” Much of her decision is therefore devoted to that issue. At the hearing the DOJ made a series of arguments as to why “executive privilege” would not be applicable in this case. First, executive privilege is designed to keep communications within the executive branch of the government from being disclosed to the legislative or judicial branches of the government and would not prevent the DOJ, an arm of the executive branch, from having access to communications otherwise protected by the privilege. Second, the current president is the person who is permitted to invoke the privilege and President Biden has already waived application of the privilege. Third, the government documents recovered in the FBI’s raid are stolen property and the 1974 decision of the U.S. Supreme Court in U.S. v. Nixon clearly established that “executive privilege” does not encompass evidence of a crime.
Judge Cannon’s reliance on protecting executive privilege as a basis for her appointment of a special master is largely founded on language found in the Supreme Court’s 1977 decision in Nixon v. Administrator of General Services to the effect that there could be circumstances (not delineated in the Court’s opinion) under which a prior president could invoke executive privilege relating to documents and conversations during his/her term in office. That language is what attorneys refer to as “dictum” (as opposed to a “holding”) as the court in its 8-1 decision found no basis for allowing Nixon to invoke executive privilege in that case. Latching on to that judicial morsel Judge Cannon ruled that the DOJ’s investigation into the crimes cited it its application for a search warrant should be temporarily halted. Even this argument ignores the fact that Trump still has the right to assert “executive privilege” at his trial as a basis for preventing specific documents from being introduced into evidence. Thus, a “no harm” standard works against Trump even more than it supports the appointment of a special master.
Judge Cannon’s willingness to bend over backwards to accommodate Trump is a clear indication that lifetime appointments will no longer assure the impartiality of the federal judiciary. That notion seems to have died in 2013 when the Senate relaxed its rules for confirming judicial appointments. Until then, all judicial appointments were routinely confirmed by the overwhelming support of Senators from both parties. The decision to reduce the number of votes needed to confirm the appointments of federal judges took place in response to abuses by Senate Republicans who banded together to block the appointments of approximately 150 judicial nominations duringPresident Obama’s second term. Subsequent to the adoption of those rule changes the best way for a District Court judge, like Judge Cannon, to enhance his or her chances to be elevated to a Court of Appeals (or even the Supreme Court) is to consistently support the agenda of his or her political party rather than strive to render well-reasoned and impartial decisions.
Of course, Trump could care less about the damage to national security or even the deterioration in the quality of justice in our federal court system. He’s simply happy that Judge Cannon’s decision requires the appointment of a special master which will delay the DOJ’s efforts to move forward with a criminal indictment against him. It still seems likely that this game will not go on for very long and should not delay the DOJ’s investigation for more than a few months. In reality, the DOJ was never likely to indict Trump until after the November 8th elections so as to avoid any criticism that its actions were undertaken to influence the outcome of those elections.
Seeking to deter the DOJ altogether from seeking an indictment against Trump Senator Lindsey Graham warned that if the DOJ proceeds the nation will erupt in “riots in the streets.” It was quickly pointed by President Biden that the government will not yield to threats of political violence as it would be a death knell for democracy in this country. Moreover, Attorney General Garland would undoubtedly take such threats as a further reason to pursue legal action against Trump. For those who forget, he prosecuted Timothy McVeigh (the “Oklahoma City Bomber”) and frequently had to deal with political violence when he was a DOJ prosecutor.
Although the evidence that the DOJ has already gathered is probably sufficient to seek an indictment against Trump, there are a number of other matters relating to this case which require immediate attention. Both Michael Cohen and John Bolton, two individuals who know Donald Trump very well, have suggested that Trump has probably stashed more classified documents in his residences in New York City and New Jersey. This possibility became more pressing when it was disclosed that there were 48 empty folders for classified documents and another 42 empty folders for documents required to be returned to the Department of Defense. Now the DOJ must move quickly to try to locate those documents and is probably seeking witnesses who can support applications for search warrants pertaining to those locations.
The DOJ also needs time to interview a number of witnesses relating to the efforts to overturn the 2020 election. Once an indictment is rendered, the DOJ will be required to provide Trump with an unredacted copy of the affidavit submitted to obtain the Mar-a-Lago search warrant. This would reveal the names of those individuals who assisted the DOJ in obtaining that search warrant and make it more difficult for it to obtain cooperation from further witnesses associated with the Trump administration or Mar-a-Lago. High on the DOJ’s list of further potential witnesses will be Evan Corcoran and Christina Bobb. The DOJ already has sufficient evidence to charge those individuals with obstruction of justice and making false statements to a federal officer, charges that could result in significant jail time as well as the loss of their licenses to practice law. Their testimony would virtually assure a conviction against Trump. Unlike Roger Stone, Paul Manafort and Michael Flynn, these individuals are unlikely to be moved by any efforts Trump might make to obtain their silence.
The most pressing problem facing the DOJ is to track down the missing documents and to try to assess the extent to which our national security has already been compromised. With respect to those documents found to be missing, the DOJ’s Counterintelligence Division, the Office of the Director of National Intelligence and the CIA will have to assume that they have already fallen into adversarial hands and that intelligence agents and techniques revealed in them have been compromised. With respect to all recovered documents the Division will have to try to determine who, if anyone, may have gained access to them. Sadly, sophisticated foreign intelligence agents invariably make copies of documents without placing their fingerprints on them and will leave them just as they were found. Thus, in most cases only time (measured in months, if not years) will reveal the extent to which the nation’s security has been damaged by the way that Trump stored them.
After the special master has been selected and renders his/her report Trump will have to find some reason to appeal Judge Cannon’s ruling and ask that all action be stayed pending his appeal. This tactics will assure that no indictment will be brought for many more months and perhaps delaying an indictment well into next year. Even after Trump is indicted he will seek ways to delay the commencement of a trial such as having it moved out of Washington, D.C. (the site of his alleged crimes) to a court located in a more “friendly” judicial district. Throughout the course of the trial his attorneys will raise countless evidentiary objections and seek a series of periodic adjournments. If and when a guilty verdict is ultimately rendered, it will be met with a motion for a new trial, followed by one or more appeals to the appellate courts. While such machinations are not likely to alter the trial’s outcome, they will dominate the political news, keeping alive Trump’s hopes of being his party’s presidential nominee in the 2024 election and, perhaps more importantly, his opportunities for raising additional monies from his supporters.