A Shameful Editorial

The Wall Street Journal failed a key test.

[Documents taken in August Mar-A-Lago search]

That the WSJ editorial page tends toward reflexive fealty to Republican causes is no secret. But the Editorial Board should be ashamed of its latest effort.

A Destructive Trump Indictment

Do prosecutors understand the forces they are unleashing?

Already, this is ominous. They’re not only insinuating that violence is likely to occur but blaming the decision to indict a person for serious crimes, not the environment created by the individual under indictment.

Whether you love or hate Donald Trump, his indictment by President Biden’s Justice Department is a fraught moment for American democracy. For the first time in U.S. history, the prosecutorial power of the federal government has been used against a former President who is also running against the sitting President. This is far graver than the previous indictment by a rogue New York prosecutor, and it will roil the 2024 election and U.S. politics for years to come.

The Justice Department is not Joe Biden’s; it’s ours. We have not, in modern history, had a former President run for re-election after having been defeated. Only one recent President, Richard Nixon, has committed crimes so egregious that they would have been worthy of prosecution—and he would likely have been prosecuted if his successor hadn’t decided, probably rightly, that pardoning him was the best way for the country to move on.

Special counsel Jack Smith announced the indictment in a brief statement on Friday. But no one should be fooled: This is Attorney General Merrick Garland’s responsibility. Mr. Garland appointed Mr. Smith to provide political cover, but Mr. Garland, who reports to Mr. Biden, has the authority to overrule a special counsel’s recommendation.

It’s certainly the case that Garland could have ordered Smith not to file charges. Presumably, he didn’t because he agrees with Smith that the evidence is very strong that Trump committed sufficiently heinous and blatant crimes that prosecution was warranted.

Americans will inevitably see this as a Garland-Biden indictment, and they are right to think so.

Now, I’ve made a variation of this argument myself for quite some time. It’s absolutely the case that Trump supporters, and even some independents, will see this as a politically-motivated prosecution. There’s just no way around that, given who Trump is and the fact that the Attorney General is a political appointee.

The appointment of a special counsel is the only mechanism we have to create a veil of independence. As I noted at the time, Smith is almost the perfect choice in that regard but it’s not going to mollify Trumpers.

But it’s one thing to acknowledge the political reality of public perception and quite another to argue that the public is “right” to believe this is some authoritarian political repression by Biden and Garland. Faced with a former President who committed crimes, they have to either uphold the rule of law—their sworn duty—or not.

The indictment levels 37 charges against Mr. Trump that are related to his handling of classified documents, including at his Mar-a-Lago club, since he left the White House. Thirty-one of the counts are for violating the ancient and seldom-enforced Espionage Act for the “willful retention of national defense information.”

It’s true that the Espionage Act of 1917 is pretty old. It’s also true that it’s been amended multiple times over the years. That it’s “seldom-enforced” is simply untrue, unless we’re using sleight of hand to argue that prosecutions for espionage are relatively uncommon compared to those for more frequently-occurring crimes. Indeed, there were several prosecutions (Reality Winner, Daniel Hale, and Julian Assange being the most famous) during Trump’s presidency.

But it’s striking, and legally notable, that the indictment never mentions the Presidential Records Act (PRA) that allows a President access to documents, both classified and unclassified, once he leaves office. It allows for good-faith negotiation with the National Archives. Yet the indictment assumes that Mr. Trump had no right to take any classified documents.

This doesn’t fit the spirit or letter of the PRA, which was written by Congress to recognize that such documents had previously been the property of former Presidents. If the Espionage Act means Presidents can’t retain any classified documents, then the PRA is all but meaningless. This will be part of Mr. Trump’s defense.

This is simply embarrassing nonsense. The whole point of the PRA was to establish public ownership of all Presidential records. Presidents are allowed to keep purely personal records as defined by law. But literally all official documents held by an incumbent President “automatically transfer into the legal custody of the Archivist as soon as the President leaves office.”

The notion that former Presidents are allowed to simply take any classified documents—let alone the originals!—home with them is simply laughable.

The other counts are related to failing to turn over the documents or obstructing the attempts by the Justice Department and FBI to obtain them. One allegation is that during a meeting with a writer and three others, none of whom held security clearances, Mr. Trump “showed and described a ‘plan of attack’” from the Defense Department. “As president I could have declassified it,” he said on audio tape. “Now I can’t, you know, but this is still a secret.”

The feds also say Mr. Trump tried to cover up his classified stash by “suggesting that his attorney hide or destroy documents,” as well as by telling an aide to move boxes to conceal them from his lawyer and the FBI.

As usual, Mr. Trump is his own worst enemy. “This would have gone nowhere,” former Attorney General Bill Barr told CBS recently, “had the President just returned the documents. But he jerked them around for a year and a half.”

Which would rather undercut the notion that this is some political sabotage by Biden and Garland, no?

That being said, if prosecutors think that this will absolve them of the political implications of their decision to charge Mr. Trump, they fail to understand what they’ve unleashed.

In the court of public opinion, the first question will be about two standards of justice. Mr. Biden had old classified files stored in his Delaware garage next to his sports car. When that news came out, he didn’t sound too apologetic. “My Corvette’s in a locked garage, OK? So it’s not like they’re sitting out on the street,” Mr. Biden said. AG Garland appointed another special counsel, Robert Hur, to investigate, but Justice isn’t going to indict Mr. Biden.

As for willful, how about the basement email server that Hillary Clinton used as Secretary of State? FBI director James Comey said in 2016 that she and her colleagues “were extremely careless in their handling of very sensitive, highly classified information.” According to him, 113 emails included information that was classified when it was sent or received. Eight were Top Secret. About 2,000 others were later “upclassified” to Confidential. This was the statement Mr. Comey ended by declaring Mrs. Clinton free and clear, since “no reasonable prosecutor would bring such a case.”

Oh, for fuck’s sake.

Should Biden have had classified documents from his days as Vice President in boxes in his private garage? No, he shouldn’t. Did he turn them over the moment they were discovered? Yes, he did.

Do I continue to think Hillary Clinton’s use of a private server in violation of established policy was egregious? Yes, I do. But Comey was absolutely right: while Clinton was sloppy and arrogant, her transgressions weren’t criminal—and certainly not to the level where we would prosecute a high government official.

Not only was Trump’s transgression orders of magnitudes worse he—again, by the Editorial Board’s own concession—would have faced zero chance of indictment had he simply turned the goddamn boxes of stolen secrets over when he was asked rather than stalling for months and forcing them to raid his compound.

This is the inescapable political context of this week’s indictment. The special counsel could have finished his investigation with a report detailing the extent of Mr. Trump’s recklessness and explained what secrets it could have exposed. Instead the Justice Department has taken a perilous path.

The charges are a destructive intervention into the 2024 election, and the potential trial will hang over the race. They also make it more likely that the election will be a referendum on Mr. Trump, rather than on Mr. Biden’s economy and agenda or a GOP alternative. This may be exactly what Democrats intend with their charges.

So, first, not indicting Trump would also have been a political act that impacted the 2020 race.

Second, is the argument that anyone who is a declared candidate for public office can never be charged with a crime?

Third, did the Editorial Board have this position vis-a-vis Hillary Clinton’s emails? Shockingly, no.

Republicans deserve a more competent champion with better character than Mr. Trump. But the indictment might make GOP voters less inclined to provide a democratic verdict on his fitness for a second term. Although the political impact is uncertain, Republicans who are tired of Mr. Trump might rally to his side because they see the prosecution as another unfair Democratic plot to derail him.

That, of course, is a real possibility. But so what? Should DOJ make indictment decisions based on how it’ll impact the Republican primaries? Really?

And what about the precedent? If Republicans win next year’s election, and especially if Mr. Trump does, his supporters will demand that the Biden family be next. Even if Mr. Biden is re-elected, political memories are long.

If Joe Biden commits crimes, he should be prosecuted for them. And, frankly, Republicans were investigating Hunter Biden even before the discovery of the documents at Mar-a-Lago. The notion that a legitimate prosecution justifies illegitimate ones is baffling.

It was once unthinkable in America that the government’s awesome power of prosecution would be turned on a political opponent. That seal has now been broken.

Again, this is simply shameful. Trump committed multiple crimes. He’s been charged with 37 counts! This is not criminalizing politics.

It didn’t need to be. However cavalier he was with classified files, Mr. Trump did not accept a bribe or betray secrets to Russia. The FBI recovered the missing documents when it raided Mar-a-Lago, so presumably there are no more secret attack plans for Mr. Trump to show off.

So, first, we have no idea whether he accepted a bribe or betrayed secrets to Russia. Second, we have no idea whether all the documents were recovered. But, even if we assume that the only crimes he’s committed are those he’s charged with, so what? You’re allowed to commit 37 crimes so long as you don’t commit actual treason?

The greatest irony of the age of Trump is that for all his violating of democratic norms, his frenzied opponents have done and are doing their own considerable damage to democracy.

There’s been zero “frenzy” here. Garland is, if anything, hyper-cautious. And allowing former Presidents to wantonly violate the law isn’t exactly great for democracy, either.

FILED UNDER: Law and the Courts, Media, , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. CSK says:

    Apparently Trump just posted this on Truth Social:


    I wonder how many will answer his call to arms?

  2. Sleeping Dog says:

    It’s the WSJ editorial page, I expected as much, but you are right, it is shameless.

    Murdoch has become positively Janus faced about trump.

  3. OzarkHillbilly says:

    Just another day in pair o’ dice.

    @CSK: No real idea of how many (a few dozen?) but I’, pretty sure they will be peaceful. No need to join the J6ers on the martyr’s cross. Sure as shit trump won’t be riding to their rescue.

  4. steve says:

    So impeaching Clinton for lying about sex was not politically motivated? The editorial writers are lying hacks. If the only way to get the papers back was via an FBI raid and you lied about having papers, your arguments are BS.


  5. EddieInCA says:


    National Review went the other way. Their headline is “The Trump Indictiment is Damning”

  6. Argon says:

    I suspect that the more sane, traditional Republicans* are secretly praying that the prosecution is successful. Sadly however, almost none are willing to go public about this.

    *Admittedly, I find it hard to conceive that there remain sane, traditional Republicans as opposed to former Republicans sad about where their party went totally off the rails.

  7. CSK says:


    Mitt Romney?

  8. charontwo says:

    It’s certainly the case that Garland could have ordered Smith not to file charges.

    No, it certainly is not the case.

    The whole point of a special counsel is insulation from political pressure, such as the whims of an AG, a political appointee.

    Accordingly, by law, Garland can not fail to sign off unless he can show a failure to follow procedure by Jack Smith. (I.e., pretty unlikely).

  9. CSK says:


    Jonathan Turley, the legal commentator for Fox News, said the indictment was “extremely damning,” and he has a history of defending Trump.

  10. Sleeping Dog says:

    While the WSJ embarrasses itself, the National Review provides a surprisingly, strong editorial against trump.

    forgot the link

  11. JKB says:

    In the 2024, Trump vs Biden, the election will be decided on who has the most potential felony prosecutions (depending on who controls the DOJ). At this point, Trump is in the lead.

  12. Kathy says:

    For no reason at all, I’m reminded of this scene:

    Brain: tell me, Pinky, are you naturally stupid or do you need to practice?

    Pinky: Practice, Brain. All day, every day! NARF!

  13. Scott F. says:

    What’s the WSJ to do? Admit that they’ve supported a wanton criminal for seven years now?

    Sunk costs are a bitch.

  14. Tony W says:

    @JKB: We should be so lucky.

    The score is 213 to zero, so I’m not concerned.

  15. Gustopher says:

    Only one recent President, Richard Nixon, has committed crimes so egregious that they would have been worthy of prosecution—and he would likely have been prosecuted if his successor hadn’t decided, probably rightly, that pardoning him was the best way for the country to move on.

    Allowing the politically powerful to escape justice is how we got into this mess.

    It created a belief that politicians are all criminals, and the follow-on belief that you’re a sucker if you follow the laws and don’t just loot the office. If Nixon got 20 years, would Trump have thought that he was above the law? If Bill Clinton was tried for perjury*, that would have reinforced the message.

    If we had a culture of prosecuting people like Nixon, it would be harder for the likes of Trump to baselessly paint his opponents as corrupt (“crooked Hillary”, “Lock her up”, Biden has the most lawless administration in history), as people would look at the fact that they haven’t been charged as some evidence that they didn’t do anything, rather than that they got away with it.

    *: I don’t think a normal citizen would be prosecuted in a similar case, but I’m ok with holding our leaders to a higher standard. Perhaps it would even have a deterrent effect.

  16. Tom Hilton says:

    This is simply embarrassing nonsense. The whole point of the PRA was to establish public ownership of all Presidential records.

    It’s even worse than that, because as I understand it these aren’t presidential records. According to the indictment, the documents at issue came from seven different national security organizations (CIA, DOD, NSA, etc.)–not the office of the president. Even if we were to accept their assertion that it’s no big deal for an ex-president to hang on to presidential records, the point is entirely irrelevant to the indictment.

  17. CSK says:

    @Tom Hilton:

    In Georgia today, Trump is saying that he had everry right to take the documents under the PRA. Yesterday he said that these very same documents were plated by the FBI.

  18. DK says:

    So I wasn’t the only one embarrassed for the WSJ when I read that drivel late last night. I’d cancel my subscription if it wasn’t free for me as a USC alum.

    The WSJ is arguing that political status should that precedence over law, and that the legal system should bend to appease an manipulative wannabe-authoritarian who threatens to violently agitate his thug minions. That’s anti-American and recipe for chaos.

    And the WSJ editors’ echoing rightwing lies about political prosecution is just desperate and pathetic Trump was indicted by a red state grand jury, not by Joe Biden — based on evidence gathered by by the FBI, which to this day, has never had a Democratic director. Every FBI director ever has been Republican.

    The lies about the PRA are just amateur and absorb. National defense secrets are not personal records, they belong to the United States — not the president.

    But at least the “Law and Order” party is dropping the facade. Everything Drama Queen Donnie touches dies.

  19. JohnSF says:

    From a UK perspective, it’s always interesting how legalistic the US is.
    Not saying it’s either a good thing, or a bad thing, necessarily.
    But it is, plainly, the foundation of your system and how it functions.
    That almost all Republican politicians are now willing to shoot that in the head and bury it in a bog, is really troubling.
    See Nikki Haley, who certainly knows better.
    If even an ignorant and confused Brit like me can figure out that an independent special prosecutor and grand jury means that it’s not “Biden attacksss!” but Haley et al won’t say it, means that the rot in the Republican Party is deep.
    BTW, to call down thunder on my head: Nixon in 1960/61 refused to contest the election results, and in 1974 he resigned. He didn’t attempt an autogolpe.
    Guy was not my cup of tea, but he did IMO have a loyalty to the USA and it’s institutions Trump has never had.
    And that many of the MAGA are too stupid to even understand in the first place.

  20. Franklin says:

    So, first, not indicting Trump would also have been a political act that impacted the 2024 race.

    Good point.

    If only logic worked on people.

  21. Kazzy says:

    You know how you avoid a politically motivated prosecution by AG Merrick Garland?

    You let Merrick Garland’s SCOTUS nomination get voted on.


  22. Mikey says:

    This garbage is nothing more than a weak-sauce screed that boils down to “OUR guy should be above the law.” That’s the long and short of it.

    I am well and truly sick of Americans who claim to love the republic while they wish with all their being for a dictatorship.

  23. Jax says:

    @Mikey: And many of them would look sideways while the rest of us are thrown in the ovens. Wink wink, we didn’t know, I mean, hoocoodanode that’s actually what they meant by civil war and stacking bodies? 😐