I am not surprised that the documents rap is the most serious legal problem Donald Trump faces. i went to the archives once to do some research nearly 30 years ago for my masters thesis. The archives is not a library. You hand over all your pens and notebooks and they put them in a locker and you can get them when you done. They bring the documents to you, a box or two at a time. These folks are pretty intense about their jobs of safeguarding government records.
There is a log kept of all the paperwork that goes into the Oval Office. The archives people know every document that the president touches, and they keep track of any document that doesn’t eventually make its way to the archives. When they were settling the accounts for Trump, they noticed a bunch of classified documents were missing. They went after them, not because it was Trump and they had it in for him, but because there were a lot of documents missing at one time, and they were freaking out. Imagine you work at the archives and there are a lot of missing classified documents, and your job is to make sure they aren’t missing but are safe under lock and key in your building. It is on you.
So they weren’t going to just shrug and say, well you know Trump.
Now what Trump didn’t realize, because he doesn’t know how government works, is that the archives folks knew that he had the documents. And when they asked for them back, he did what Trump does, and ignored them. And when the FBI and the Justice Department asked for them, he pretty much did the same thing. By this point, I imagine that Trump got his back up. He hasn’t been in a good mood since November 2020 and especially January 6, 2021, and he isn’t about to be pushed around over some documents. He probably figured that they would get tired of it and go away.
That was a big mistake, a career mistake. Again, Trump does not understand the minds of civil servants. They do not let things go. One of the jobs that the prosecutors will have now is trying to explain why Trump took the documents and wouldn’t give them back. I think the jury will want to know what was going on in his mind. There are several possible explanations, all of them kind of nutty. One is that the documents symbolized power. They were secrets, and if he had them, he retained some fragment of power that he lost in the 2020 election. Another theory is that he could impress his friends by waving around these documents, which is kind of related to the first. Some have speculated that he saw value in these secrets, something he could turn into cash or use as business opportunities presented themselves. I don’t know. It depends on what the documents contain. We may find out when the indictment comes out Tuesday.
The thing that would worry me now if I were Trump is that this documents case is unlike all the other legal peril that Trump has ever faced, civil or criminal. I don’t think the government would indict him if these were mildly classified documents. The bureaucracy has a tendency to overclassify, and there are a lot of classified documents that aren’t much. No special prosecutor would indict a president over documents that, when they were revealed in court, would turn out to be a lot of nothing. No, there has to be something particularly nasty about these documents that is worth the grief of indicting a former president much beloved by Republicans. When prosecutor Jack Smith tells the world what Trump squirreled down to Florida, it will probably land with an impact. There are certainTrump supporters who will who look at that and say, man, you shouldn’t have had those lying around Mar-a-Lago. That was just dumb. People who have been in the military or worked in national security have a certain regard for secrets.
The other problem Trump has is that this is not a particularly complicated case. He took documents that were classified and wouldn’t give them back. He got people to make misleading and false statements about the documents. Ordinary people serving on a jury can be relied upon to understand what secrets are and why they aren’t supposed to be taken to Florida and stuck in a box in a store room. And they understand that if the government says give us those documents back, and you don’t,that’s a problem.
The prosecutors will hammer on this point: They indicted Trump because otherwise it would be very difficult in the future for the Justice Department to prosecute anyone else who takes government secrets. Their lawyers will say, well Trump did this very thing and he wasn’t charged.