Debunking the Absurd Defenses of Donald Trump’s Indictment

From the moment Donald Trump was indicted last week, top Republican lawmakers and media figures have found themselves in the humiliating position of trying to defend the indefensible. Many of them are lawyers; having seen the overwhelming strength of the evidence in the indictment, they could simply have accepted that Mr. Trump is in big trouble.

Instead, they have burst forth with an embarrassing slurry of misdirection, illogic and non sequiturs explaining why Mr. Trump should not be treated like everyone else in the eyes of the law. They offer legal arguments with no basis in the law or explanations that are nonsensical on their face.

On Monday, for example, House Speaker Kevin McCarthy was asked whether he was concerned that Mr. Trump kept highly classified national security documents in a Mar-a-Lago bathroom. His reply: “A bathroom door locks”.

Alas, Mr. McCarthy is far from alone in debasing himself for the benefit of the former president. So on the occasion of Mr. Trump’s second not-guilty plea in three months, after he was arrested and arraigned on the charges on Tuesday in a Miami federal court, let’s take apart the two most common, and most absurd, defenses of his behavior.

Selective Prosecution. This is the “witch hunt” narrative that has animated the Republican Party for years. In this account, the “deep state” has always had it in for Mr. Trump, targeting him for things that other officials, especially Democrats, get away with. “If you’re Donald Trump, they’re going to come get you for anything”, Byron Donalds, a Florida congressman, said on CNN on Tuesday. “But if you’re Hillary Clinton or Joe Biden, they’re going to investigate very, very slowly, and let’s see where it actually ends up”. This is an upside-down way of looking at what’s happened over the past several years.

It’s true that Mr. Biden was found to have classified documents from his time as a senator and as vice president in his personal possession, too, some stored in his Delaware garage. Same with former Vice President Mike Pence. In both cases, the removal of secret material after their terms ended was apparently inadvertent, and there was no indication that either one even knew he possessed the documents. Both men cooperated with authorities, immediately returning the documents to their rightful owner, the federal government. Even so, Mr. Biden’s attorney general, Merrick Garland, quickly appointed a special counsel to look into the president’s documents case.

In contrast, it has taken the government more than a year to get the hundreds of classified documents Mr. Trump took from the White House. First the government asked politely, then it issued subpoenas, and finally it executed a search warrant. Even now, it would be foolish to assume that everything in Mr. Trump’s possession has been turned over. The indictment charges him with multiple acts of obstruction, including instructing his personal aide Walt Naut to move boxes around in order to hide them from his own lawyers, and later suggesting to one of his lawyers that he “pluck” out any documents that might get him in trouble.

And what of Mrs. Clinton, against whom Mr. Trump still seems to believe he is running, seven years later? It has become an article of faith among Republicans, both the “Lock her up” crowd and the supposedly more serious ones, that Mrs. Clinton committed a major crime by using a personal email server to conduct government business while she was secretary of state. Even Chris Christie, the former New Jersey governor who plays one of the few responsible politicians in the modern G.O.P., called the allegations against her “damning”.

Yet the Justice Department, while rightly calling her behavior “extremely careless”, declined to prosecute — a decision that has infuriated the G.O.P. ever since. “Is there a different standard for a Democratic secretary of state versus a former Republican president?” asked Gov. Ron DeSantis, who is running against Mr. Trump in the Republican primaries while echoing his claims against prosecution. No. But there is a different standard for a public servant who cooperates with the government after apparently making a mistake in handling highly sensitive information, compared with one who plays three-card monte with investigators until they have no choice but to enter his home with a warrant.

That’s not a comparison of Mrs. Clinton and Mr. Trump; it’s a comparison of Mr. Trump and himself. Note that the special counsel assigned to Mr. Trump’s case, Jack Smith, did not charge him regarding any of the documents he returned in early 2022, when he and his lawyers voluntarily sent back 15 boxes in response to a National Archives request. The charges pertained only to those documents that the government had to go in and retrieve.

So let’s be clear about who’s being targeted for what. Mr. Trump created this mess entirely by himself. He didn’t simply violate the law by taking documents that didn’t belong to him. He refused to return many of them when asked. Had he done so, as Mr. Biden and Mr. Pence did, he very likely would not have faced any legal consequences. In other words, people who behave like responsible adults are more likely to get the benefit of the doubt.

The Presidential Records Act. A separate defense of Mr. Trump’s actions has been offered up by the former president’s lawyers for months, and lately it has been appearing with more frequency in right-wing media: He is not guilty, the argument goes, because of a law called the Presidential Records Act. Congress passed this law in 1978, after the Watergate scandal, specifically to prevent presidents from taking papers that don’t belong to them when they leave the White House. (An earlier law stopped Richard Nixon from destroying his own papers, including the Watergate tapes, after his resignation in 1974. Mr. Nixon challenged the law but lost in the Supreme Court.)

The act says explicitly that the federal government “shall reserve and retain complete ownership, possession and control of presidential records”.

And this is how the Trump team interprets the records act: “The president can take whatever he wants when he leaves office”, said Kash Patel, a lawyer who served as a high-ranking national security adviser in the Trump administration. When the president takes a document, he went on, “it transitions from being U.S. government property to the personal, private property of the past president”. This is about as wrong as it is possible to be; it is literally the opposite of what the law says, especially when you are talking about the sort of highly sensitive documents — nuclear secrets, military strategies and so forth — that Mr. Trump is charged with illegally keeping in his possession.

I would call it gaslighting, except it’s not creative enough. “There’s no ambiguity in the law”, said Timothy Naftali, a presidential historian and former director of the Nixon Presidential Library. “The 31 documents that are listed — there’s no way you could apply the P.R.A. and determine they were personal records. Under the P.R.A., they belong to the American people. Trump stole American property”.

Mr. Naftali continued, “This shouldn’t be strange. Most every power a president has disappears when they leave office. For example, he’s no longer in charge of the nuclear codes. So why is it so weird for people to imagine that he can’t handle the nuclear secrets?”

What’s concerning about this argument is how quickly it has become a talking point among Mr. Trump’s defenders. It almost seems to be a coordinated effort to influence the public conversation, and thus Aileen Cannon, the federal judge assigned to Mr. Trump’s case, who previously demonstrated what you might call a remarkably flexible and Trump-friendly view of the relevant law. How does this play out in court? Consider the records act a red light. If enough people in the right-wing ecosystem keep calling it a green light, Judge Cannon may be persuaded to treat it like one and to drive the case right into a ditch.

Perhaps the worst argument of all is that it is somehow dangerous to prosecute a former president. The greater danger, of course, is a former president who repeatedly flouts the law without consequence.

Jesse Wegman is a member of the editorial boardwhere he has written about the Supreme Court and national legal affairs since 2013. He is the author of “Let the People Pick the President: The Case for Abolishing the Electoral College”.