A popular talking point in right-wing circles goes something like this: Donald Trump's indictment on charges of mishandling classified documents is driven by a "deep state" conspiracy to keep Trump from taking back the White House. If that sounds like nonsense . . . well, it is -- as reported by The Morning newsletter of The New York Times. Writes David Leonhardt of The Times:
Two weeks ago, a federal judge sentenced Robert Birchum, a former Air Force lieutenant colonel, to three years in jail for removing hundreds of secret documents from their authorized locations and storing them in his home and officer’s quarters.
In April, a judge sentenced Jeremy Brown, a former member of U.S. Special Forces, to more than seven years in prison partly for taking a classified report home with him after he retired. The report contained sensitive intelligence, including about an informant in another country.
In 2018, Nghia Hoang Pho received a five-and-a-half year sentence for storing National Security Agency documents at his home. Prosecutors emphasized that Pho was aware he was not supposed to have taken the documents.
These three recent cases are among dozens in which the Justice Department has charged people with removing classified information from its proper place and trying to conceal their actions. That list includes several former high-ranking officials, like David Petraeus and John Deutch, who each ran the C.I.A.
Now, of course, the list also includes Donald Trump, who was arraigned in a Miami federal courthouse on Tuesday and pleaded not guilty to 37 charges.
Leonhardt cites cases showing Trump is not the victim of a conspiracy, but he also is not receiving special, favorable treatment. He is being treated like other Americans charged with similar crimes. That means our justice system, with all its faults, actually is working as it should in this case. Writes Leonhardt:
Are federal prosecutors singling out Trump because of his signature role in American politics? Or are they basing their decision to indict him solely on the facts of the case?
Sean Trende, a political analyst with RealClearPolitics, has offered a helpful way to understand these questions — and specifically when a former president should, and should not, be charged with a crime.
Start by thinking about all the other people who had engaged in behavior similar to that for which the ex-president was charged with a crime. If just some of those other people were charged, the ex-president should not be, Trende wrote. Prosecutors have a large amount of discretion about which cases to bring, and they should err on the side of not indicting a former president because of the political turmoil it is likely to cause, he argued.
But if the ex-president did something that would have caused anybody else to be charged with a crime, he should be, too. “The president shouldn’t be above the law,” Trende explained.
Where does the Trump case fall on Sean Trende's scale? The answer is clear, Leonhardt states:
There is ample reason to believe that the document case against Trump falls into the second category: Had any other American done what he is accused of doing, that person would almost certainly be prosecuted. “The real injustice,” the editors of The Economist magazine wrote Tuesday, “would have been not to indict him.”
Consider: Prosecutors have accused Trump of removing classified documents from government property and bringing them home with him. Those documents contained sensitive information, such as military plans and intelligence about foreign militaries. Trump made clear to others that he knew he should not have the documents and took steps to mislead investigators about them, prosecutors claim.
It’s true — as Trump’s defenders repeatedly point out — that other government officials, including President Biden, Mike Pence, and Hillary Clinton, have also mishandled classified information without having been charged with crimes. But those cases were very different from Trump’s. The transgressions seemed to be accidental. The officials returned the documents when asked. They did not try to mislead federal investigators.
Those words might not please Trump or his supporters, but it's hard to ignore, or defend, the former president's action. That might be one reason he is having a hard time finding a lead attorney for his legal defense team. Even William Barr, who served as attorney general under Trump says his old boss is "toast" if the indictment facts are on target. Writes Leonhardt:
Trump’s alleged actions instead resemble those of the obscure officials I mentioned at the top of today’s newsletter. His behavior also seems to have been much more brazen than that of Deutch and Petraeus.
This pattern helps explain why legal experts have been much more supportive of the Justice Department’s indictment of Trump than of the case in New York charging Trump with violating campaign-finance law. The New York case has made some experts uncomfortable because it lacked a clear precedent. It does not seem to pass Trende’s standard for when a former president should be charged with a crime. There are no good analogies.
The New York case relies on a novel combination of statutes to charge Trump with a felony for hiding payments he made to conceal a sexual encounter. Perhaps the most similar case — the trial of John Edwards, a former Democratic presidential candidate, also on charges of concealing payments connected to an affair — ended with an acquittal on one charge and a hung jury on five others.
By contrast, the list of analogies to the document charges against Trump just keeps growing. Next week, Kendra Kingsbury, a former F.B.I. analyst, is scheduled to be sentenced to federal prison. She has pleaded guilty to having brought hundreds of classified documents to her home in Dodge City, Kan.