Why did Trump’s lawyers refuse to declare that he declassified docs when it doesn’t matter?

For those of us who wonder about such things, the $3 million question in the Trump saga, soon to be a made-for-TV movie, asks why? Anyone who can surf the web or who watches MSNBC knows that the case regarding Trump’s document theft is a simple one and it is defined by the Presidential Records Act ( PRA) which according to the National Archives website:

Establishes public ownership of all Presidential records and defines the term Presidential records.

- clear and concise language that is almost immune from lawyerly doublespeak. Yet, the Trump brain trust has chosen to ignore the obvious offense that seems indefensible-what was he doing with all those presidential records? Meanwhile, they refused to answer the rather straightforward question posed by their chosen special master asking whether tfg claims that he had declassified the top secret documents before he shipped them off to Mar-a-Lago and other sites unknown.

Judge Raymond Dearie had asked the question in order to settle the discrepancy that has arisen from the ex-president’s public statements claiming he had “standing orders” to declassify records at will!- a claim his lawyers had refused to assert out of sheer fear of falling into a perjury trap the size of their client’s big mouth. Some would argue that the point is moot since the PRA doesn’t require a classification standard for stolen or missing records. The law team did, however, offer a clue as to why they are practicing at law with valid licenses. Their original response to Dearie’s request was that the declassification issue should be withheld for later use as a defense in the case of a later indictment. Today, they further clouded the issue with an argument straight out of the backside of the Triple Crown winner, Secretariat (euphemistic alternative in place of the indelicate but more appropriate term, horseshit):

The government again presupposes that the documents it claims are classified are, in fact, classified and their segregation is inviolable. However, the government has not yet proven this critical fact. The president has broad authority governing classification of, and access to, classified documents.”

and later in their argument: “In what at its core is a document storage dispute that has spiraled out of control, the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records” — Bart Jansen, USA Today, September 20, 2022

They are wrong on all counts. These are not personal documents nor is Mr. Trump the president any longer-he is now simply “the former president” better known as John Q. Insurrectionist. But more telling is the inartful use of misdirection insinuating that classification is at the heart of the case and the primary reason for the order used by the government to seize records at Trump’s home last month. Unless Mar-a-Lago can be shown to be the National Archives annex, the records withheld and eventually seized had no business being in Florida.

So why all the obfuscation… why the sleight of hand worthy of David Copperfield? I suggest that part of their strategy here may include:

  • They are far more concerned with the potential Espionage Act aspects of the case and are seeking to create a legal cover to derail a grand jury indictment on that charge, and if this is not successful. setting up the predicate for subsequent jury nullification if the case goes to court.
  • They will make a run at an ad hominem attack on the likes of former White House Lawyer Eric Herschmann to put in question his reported assertion that after he left the White House and before the January 2022 partial return of 12 boxes belonging to the Archives he warned the ex-presidency of the consequences of holding documents that belonged to state in his Florida resort.

The legal quagmire enveloping Trump, in this case, leaves his team of lawyers little room to argue the basic defenses that are open to most criminal defendants. Innocence is out. Insanity is as well, even though it has its merits,. Trump’s intent and his knowledge of the law a re the sticking points here. Both seem to be rather obvious strengths of the prosecutor’s case. Herschmann and likely several other Trump confidants can testify that Trump was aware of the law. Herschmann can elaborate that he had, in fact, reprised his warning to Trump which may have prompted the return in January of the 12 boxes. And herein may prove to be the Trump lawyers’ largest legal hurdle. The remaining records that Trump withheld and that were the source of the FBI seizure in August is the basis for securing a charge of obstruction- which of course was always the case with Trump from the time he slithered down the escalator in Trump Tower.

For the lawyers, Trump’s actions in furtherance of his crimes have handed them a Rubik’s Cube of impossible defenses- argue ownership and confront the clear voice of the Presidential Records Act. Turn the defense to intent, and listen as Trump’s inner group become witnesses to affirm that he knowingly removed records he was told were not his. Ignorance of the law? Not a defense in any case, but more here because of Herschmann, Philbin, Cipollone, et.al. What is left to the Trump defense is time. Delay is always a tactic used by Trump to evade and mitigate his exposure to the law. He is betting that time may allow for more political turmoil and maybe a public loss of interest in his case. It also provides the opportunity for Republicans to sweep both houses of Congress in the midterm election giving his cohorts an opportunity to derail the process.

I am skeptical, however, that Trump and his lawyers are even on the same page regarding his case. Moral and ethical boundaries are inherent in what we know as the rule of law. Trump does not submit to the arcane processes of the law his lawyers are compelled to follow. They are advocates before the court- he is a gladiator in the ring. He and his party don’t believe in playing fair because if they do they lose. That is the purpose and consequence of “the Big Lie.” They are handing the opposition a two-headed coin- heads they win. In Trump’s mind, the legal maneuverings we are now involved are preliminary. He is holding out for his own final maneuver, call it an illegal “Heil Mary”, as he in his twisted thinking is forced to confront a jury. He needs just one, a true believer, a follower of Q, or perhaps someone who doesn’t as much believe him as believe in him. It is an inevitability he cannot help embracing. His ultimate fantasy, beating the odds with a stacked deck.

Ken Burns’s new documentary on the holocaust reminds us that we as Americans hold a somewhat romanticized view of our nation. Burns in an NPR interview recounts how American leaders and many of its most influential citizens were drawn to the theories on race and immigrants espoused by the Nazi regime while the Germans, at the same time were observing our own treatment of blacks and immigrants as a model for their own atrocities:

It’s shocking in every degree — the anti-Semitism that creeps up within the State Department and in the Congress and the American people. And Henry Ford is a good example. Here is, you know, the most-celebrated industrialist. And he thinks Jews are responsible for the assassination of Abraham Lincoln. He doesn’t put out a pamphlet. He’s buys a newspaper, The Dearborn Independent, which ends up having the second-highest circulation in the United States. And he prints and reprints a Russian forgery, a Russian hoax called “The Protocols Of The Elders Of Zion,” which is the worst anti-Semitic track ever written. And it is still — you go online, and that’s the Bible of the anti-Semites to this day. And he promotes it.

And so the American people are steeped in this. The German jurists come to the United States to study our Jim Crow laws to fashion the first — or early anti-discriminatory laws against the Jews. And so, you know, we’re not responsible for this. It’s very important to say. We didn’t do this. We’re not complicit. But these ideas of racism, of nativism, of anti-Semitism are in the air, in the currency of human life everywhere. And that’s what manifests. And that’s what makes it, I think, as you say, shocking.

— Ken Burns, NPR Interview with Michel Martin

The leap from the Nazi cult theories that rationalized the holocaust to the cult of Trump is not so great. Burns speaks to the dangers and the lessons that history helps clarify through the lens it provides into our past. In this case, as in Nazi Germany of the 1930s and 40s, we may have the equation of power backward. Both Hitler and Trump are credited by their followers for creating their movements.

Perhaps, it is the other way around. What if instead movements are entities in search of a leader — if Germany sought out a Hitler? And what if the QAnon, racist, white-supremacist fasc ist just happened to stumble upon a Trump? Some movements shape the future, others are not so… well-intended.

Originally published at https://www.dailykos.com on September 20, 2022.

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Former president of the International Association of Laboratory Schools (IALS) and a founder of a charter school based on MI theory.

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Vince Rizzo

Vince Rizzo

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Former president of the International Association of Laboratory Schools (IALS) and a founder of a charter school based on MI theory.