Trump Tipping Point?

As more details emerge about the documents he stole, defenders are falling away.

A somewhat-redacted copy of the affidavit used to justify the search of former President Donald Trump’s Mar-a-Lago home has been released and analysts think it’s quite damaging. More importantly, some unlikely sources seem to be persuaded that it’s a big deal.

At the NYT, Luke Broadwater, Katie Benner and Maggie Haberman take us “Inside the 20-Month Fight to Get Trump to Return Presidential Material.” It’s an interesting enough read but the headline gives away the plot: the US government spent more than a year and a half trying to get documents back from Trump before the search.

Their colleague Charlie Savage reports that the “Possibility of Obstruction Looms Over Trump After Thwarted Efforts to Recover Documents.”

When the Justice Department proposed redactions to the affidavit underlying the warrant used to search former President Donald J. Trump’s residence, prosecutors made clear that they feared the former president and his allies might take any opportunity to intimidate witnesses or otherwise illegally obstruct their investigation.

“The government has well-founded concerns that steps may be taken to frustrate or otherwise interfere with this investigation if facts in the affidavit were prematurely disclosed,” prosecutors said in the brief.

The 38-page affidavit, released on Friday, asserted that there was “probable cause to believe that evidence of obstruction will be found at” Mr. Trump’s Mar-a-Lago compound, indicating that prosecutors had evidence suggesting efforts to impede the recovery of government documents.

Since the release of the search warrant, which listed three criminal laws as the foundation of the investigation, one — the Espionage Act — has received the most attention. Discussion has largely focused on the spectacle of the F.B.I. finding documents marked as highly classified and Mr. Trump’s questionable claims that he had declassified everything held at his residence.

But by some measures, the crime of obstruction is a threat to Mr. Trump or his close associates that is as much or even more serious. The version investigators are using, known as Section 1519, was part of the Sarbanes-Oxley Act, a broad set of reforms enacted in 2002 after financial scandals at companies like Enron, Arthur Andersen and WorldCom.

The heavily redacted affidavit provides new details of the government’s efforts to retrieve and secure the material in Mr. Trump’s possession, highlighting how prosecutors may be pursuing a theory that the former president, his aides or both might have illegally obstructed an effort of well over a year to recover sensitive documents that do not belong to him.

To convict someone of obstruction, prosecutors need to prove two things: that a defendant knowingly concealed or destroyed documents, and that he did so to impede the official work of any federal agency or department. Section 1519’s maximum penalty is 20 years in prison, which is twice as long as the penalty under the Espionage Act.

Julie O’Sullivan, a Georgetown University law professor who specializes in white-collar crime, said the emerging timeline of the government’s repeatedly stymied attempts to retrieve all the documents, coupled with claims by Mr. Trump that he did nothing wrong because he had declassified all the documents in his possession, raised significant legal peril for him.

“He is making a mistake in believing that it matters whether it’s top secret or not,” she said. “He is essentially conceding that he knew he had them.” If so, she added, then not giving them back was “obstructing the return of these documents.”

His colleagues Julian E. Barnes and Mark Mazzetti (“Classified Material on Human Intelligence Sources Helped Trigger Alarm“) add:

Mr. Trump has a long history of treating classified information with a sloppiness few other presidents have exhibited. And the former president’s cavalier treatment of the nation’s secrets was on display in the affidavit underlying the warrant for the Mar-a-Lago search. The affidavit, released in redacted form on Friday, described classified documents being found in multiple locations around the Florida residence, a private club where both members and their guests mingle with the former president and his coterie of aides.

Nothing in the documents released on Friday described the precise content of the classified documents or what risk their disclosure might carry for national security, but the court papers did outline the kinds of intelligence found in the secret material, including foreign surveillance collected under court orders, electronic eavesdropping on communications and information from human sources — spies.

Mr. Trump and his defenders have claimed he declassified the material he took to Mar-a-Lago. But documents retrieved from him in January included some marked “HCS,” for Human Intelligence Control System. Such documents have material that could possibly identify C.I.A. informants, meaning a general, sweeping declassification of them would have been, at best, misguided.

“HCS information is tightly controlled because disclosure could jeopardize the life of the human source,” said John B. Bellinger III, a former legal adviser to the National Security Council in the George W. Bush administration. “It would be reckless to declassify an HCS document without checking with the agency that collected the information to ensure that there would be no damage if the information were disclosed.”

National security lawyer Bradley P. Moss takes to the Daily Beast to proclaim “It’s Over: Trump Will Be Indicted.”

I have finally seen enough. Donald Trump will be indicted by a federal grand jury.

You heard me right: I believe Trump will actually be indicted for a criminal offense. Even with all its redactions, the probable cause affidavit published today by the magistrate judge in Florida makes clear to me three essential points:

(1) Trump was in unauthorized possession of national defense information, namely properly marked classified documents.

(2) He was put on notice by the U.S. Government that he was not permitted to retain those documents at Mar-a-Lago.

(3) He continued to maintain possession of the documents (and allegedly undertook efforts to conceal them in different places throughout the property) up until the FBI finally executed a search warrant earlier this month.

That is the ball game, folks. Absent some unforeseen change in factual or legal circumstances, I believe there is little left for the Justice Department to do but decide whether to wait until after the midterms to formally seek the indictment from the grand jury.

The cruelest irony for Trump is that it never needed to be this way.

Put aside that in the chaos following his election loss Trump’s team never undertook the normal procedure for properly sorting through and archiving his presidential records in coordination with the National Archives and Records Administration (NARA). Put aside that properly marked classified records were shipped to Mar-a-Lago and sat there for months until he began turning stuff over to NARA in late 2021.

If he had fully cooperated at that point, and returned all of the records to NARA last year, this likely never would have become a criminal matter. DOJ would have declined to take any action, notwithstanding the existence of the classified records, and it would have been a “no harm, no foul” situation. Just another minor story in the Trump saga of incompetence.

I continue to be skeptical that DOJ will indict a former President, let alone the presumptive challenger to the sitting President in the next election. Not only because doing so would inevitably be seen as partisan but because there’s a high likelihood, depending on where the case is tried, that some Trump supporters would be on the jury. Still, we’re at the point where not charging him might be worse for the country.

Further, it’s beginning to look like even Trumpers are tired of defending the indefensible.

Back at NYT, Jonathan Weisman reports “Republicans, Once Outraged by Mar-a-Lago Search, Become Quieter as Details Emerge.”

In the minutes and hours after the F.B.I.’s search of former President Donald J. Trump’s residence in Florida this month, his supporters did not hesitate to denounce what they saw as a blatant abuse of power and outrageous politicization of the Justice Department.

But with the release of a redacted affidavit detailing the justification for the search, the former president’s allies were largely silent, a potentially telling reaction with ramifications for his political future.

“I would just caution folks not to draw too many conclusions,” Gov. Glenn Youngkin of Virginia, a Republican, said on Fox News. It was a starkly different admonition from his earlier condemnations of what he said were “politically motivated actions.”

Some Republicans will no doubt rally around Mr. Trump and his claim that he is once again being targeted by a rogue F.B.I. that is still out to get him. His former acting White House chief of staff, Mick Mulvaney, said on Twitter that “this raid was, in fact, just about documents,” which he called “simply outrageous.” Representative Andy Biggs, Republican of Arizona and an ardent Trump ally, was on the right-wing broadcaster Newsmax denouncing the F.B.I. as politically biased, though he notably did not defend the former president’s possession of highly classified documents.

But generally, even the most bombastic Republicans — Representatives Marjorie Taylor Greene of Georgia, Lauren Boebert of Colorado, Jim Jordan of Ohio — were at least initially focused elsewhere. Ms. Greene was posting on Friday about border “invasions.” Ms. Boebert noted on Twitter the anniversary of the suicide bombing of U.S. service members at the airport in Kabul, Afghanistan. Mr. Jordan was focused on an interview with Mark Zuckerberg, the Facebook founder. None tweeted about the affidavit.

To be sure, that’s thin gruel. But HuffPo reports that even Trump’s lying toady Bill Barr has had enough.

Former Attorney General William Barr attacked Donald Trump and his Republican supporters for again “pandering to outrage,” this time over the FBI search of Mar-a-Lago.

Barr was pressed Thursday by journalist Bari Weiss on her podcast “Honestly” on why Republicans should trust the legitimacy of the FBI search in the wake of Trump’s attacks on the operation to retrieve government documents.

An irritated Barr responded: “Something I’m pretty tired of from the right is the constant pandering to outrage and people’s frustrations. And picking and picking and picking at that sore without trying to channel those feelings in a constructive direction.”

Barr said it’s “premature” to reach a conclusion about the Aug. 8 FBI search of Trump’s resort and residence. Agents turned up 27 boxes of material, including 11 packets of classified material, including some top secret information. Under the Presidential Records Act, all of the documents should have been turned over to the National Archives at the end of Trump’s term.

Barr conceded it’s “hard to explain” why Trump would have held on to the official documents.

He characterized vicious attacks on the FBI by Trump and his supporters as “over the top.”

FBI Director Christopher Wray, who was appointed by the former president, is not going to “wake up and say, you know, ‘How do I throw the FBI’s weight around to interfere in the political process? Just the opposite. I think he’s very cautious about that,” Barr told Weiss.

Barr said he’s particularly “irritated” at the “whole episode” because it “strengthens [President Joe] Biden and hurts the Republican Party going into the midterms because the focus once again returns to President Trump and his persona and his modus operandi rather than the pocketbook issues” of the campaigns.

Barr also attacked Trump’s constant drive to divide Americans over every issue.

“The problem with Trump is that it’s all about running just the base election, whip up your base, get your base all upset, get them outraged and turn them out at the polls,” Barr said.

“That’s a prescription for continued hostility within the country, and demoralization of the country and an impasse in the country,” he added, which Barr also accused “both sides” of creating.

Barr called Trump his “own worst enemy,” who’s responsible for provoking much of “venom” directed at him.

That Barr is chiefly worried about how Trump’s actions impact the electoral chances of the GOP, rather than actual damage they’ve done to the country and the rule of law, is very much on brand. Not only for him but for the Republican Party leadership. We’re not anywhere close to a mass rejection of Trump by his core supporters. We might be at the point, though, where those who held their nose and voted for him despite his odiousness can’t bring themself to do so again.

FILED UNDER: *FEATURED, Crime, Law and the Courts, US Politics, , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Tony W says:

    Reportedly CIA informants in certain countries have been lost at a greater pace over the past 18 months or so, and coincidentally Trump needed money badly after legitimate banks cut him off, and coincidentally he had documents of such folks in his possession at Mar-a-Lardo.

    If a connection is proven, the justice department will have no choice but to prosecute him.

    14
  2. Michael Reynolds says:

    IIRC it was about five years ago when I first advised Trump to pardon, resign and flee.

    Pardon all his criminal gang, resign from the presidency, and flee to a foreign country ready to shelter him. I suggested the Philippines – Florida-like weather, lots of golf courses.

    9
  3. MarkedMan says:

    Those who think seriously about politics and pay attention are not going to change their opinion. The tipping point, therefore, will only come when more of those not so heavily invested just start to get tired and annoyed with Trump. Unfortunately I have no idea how to judge that.

    5
  4. Just nutha ignint cracker says:

    Barr said he’s particularly “irritated” at the “whole episode” because it “strengthens [President Joe] Biden and hurts the Republican Party going into the midterms because the focus once again returns to President Trump and his persona and his modus operandi rather than the pocketbook issues” of the campaigns.

    Free translation via Cracker.com:

    DAMMIT! If we’d had anybody but that buffoon in charge during the transition, we’d have had Biden out on his ass, and we’d never need to worry about elections again.

    7
  5. wr says:

    I have no idea what Hell might actually be like, but part of me suspects it might entail an eternity of listening to Bill Barr in conversation with Bari Weiss.

    19
  6. SC_Birdflyte says:

    @Michael Reynolds: I have friends in the Philippines. I wouldn’t want to wish TFG on them.

    3
  7. DK says:

    Lock
    Him
    Up

    #CrookedDonald

    2
  8. Scott F. says:

    @Michael Reynolds:
    The commentariat at OTB has often pondered the unlikelihood of a jury finding Trump guilty of almost any charge, because of the high chance of at least one MAGAt being seated on the jury. But consider criminal charges from secret documents at his house!?! I see the potential for charges like that ensnaring the Trump children.

    Though a extreme long shot, I could see Trump accepting a plea deal for no personal jail time to protect Ivanka or Don Jr. – though maybe not Eric! – from prison. Forcing Trump to allocate in open court on his guilt would likely cause the Orange One to disintegrate from within. Only a smoldering heap of bile and hubris would be left on the courtroom floor. It would be the television event of the century.

    4
  9. Michael Reynolds says:

    @Scott F.:
    Trump will happily throw his kids under the bus.

    Here’s how he’ll work it out: 1) They’re young, a few years in stir are nothing to them. 2) I’m a former POTUS with many followers, I must stay free for ‘the dignity of the office’ and so that I can raise money to support my jailed children. 3) It’s really their fault anyway, they should have given me better advice.

    Trump is not capable of caring about anyone but himself. His supposed affection for Ivanka is sexual attraction, not parental love. And he despises his boys as toadies who’d be nothing without him. “Look at all I’ve given them, now it’s their turn to give back by going to prison.”

    He’s a psychopath, devoid of empathy, incapable of love, just a malignant tumor of a man.

    27
  10. Scott F. says:

    @Scott F.: … allocute not allocate…

  11. Scott F. says:

    @Michael Reynolds:
    Geez, give a man his only conceivable scenario for Trumpian just deserts, will ya? The Former Guy dying of a heart attack on a foreign golf course won’t bring the catharsis I need!

    4
  12. gVOR08 says:

    @Just nutha ignint cracker: I think a better translation of Barr is “I better find every chance I can to criticize Trump without pissing off either the base or the establishment GOPs. If I don’t find some way to launder my reputation I’ll never get invited to the good cocktail parties again, or the good corporate boards.”

  13. gVOR08 says:

    @Scott F.:

    allocute not allocate

    Don’t worry, the few of us who noticed blamed spell check.

    2
  14. Kathy says:

    We’ve been disappointed many times before.

    Count no one happy, etc.

    4
  15. Michael Reynolds says:

    @Scott F.:
    How about if Trump ends up on Cameo doing MAGA shoutouts for $150 a pop? I’d rather see him in prison, but some righteous humiliation would also be nice.

    4
  16. dazedandconfused says:

    Interesting if true…

    1. 7/31/2019: Trump spoke with Putin (NYT)

    2. 8/3/2019: Trump issued a request for a list of top US spies (The Daily Beast)

    3. 10/5/2021: “CIA Admits to Losing Dozens of Informants”. (NYT)

    4. 8/26/2022: Documents at MAL Could Compromise Human Intel (NYT) 1/5

    7
  17. OzarkHillbilly says:

    @Michael Reynolds: Yep, he’ll throw his children under the bus in a NY second.

    2
  18. grumpy realist says:

    @OzarkHillbilly: I seemed to remember a report that someone was talking to Trump about how all his outstanding debts were going to wreck havoc on his business and didn’t Trump worry about how this would impact the legacy he was leaving to his children?

    Trump’s response was something like “I won’t be here; not my problem.”

    2
  19. gVOR08 says:

    @Michael Reynolds: Even his kids are just characters in a movie about him.

    7
  20. becca says:

    @gVOR08: trump goes beyond narcissism to solipsism. His is the only self and nothing else exists, so nothing else matters. Put that together with The Power of Positive Thinking and the results are combustible.

    2
  21. Matt Bernius says:

    One thing I find telling is that across all of these filings and missives, I have yet to see a Trump attorney make an affrimative argument that he declassified the documents while in office. They refer to the declassification power, but have yet to say it was exercised.

    I am genuinely curious as to whether they are keeping that powder dry for future use or if there is another reason they are choosing not to use it.

    4
  22. Lounsbury says:

    @Tony W: Barring something that was unimpeachable direct evidence, the Lefties would be better served not engaging in over-reaching speculation (as in the original Russian dossier).

    The actual evidence collected is actually appearing quite bad for Trump.

    Stick purely to what is very proveable – not what one can credibly as a Trump Hater believe – but rock solid proveable.

    The bungler through his total narcisism has given his opponents a knife that might just land home. Don’t over-reach.

    @Scott F.: @Michael Reynolds: is quite spot on, it is a best assumption Trump would sacrifice even his own children on the alter of his ego.

    But on the other than the nature and content of this latest development is such that rather like with Bannon conviction, even the Trump sympathisers a proper jury selection might very well be possible to have the sympathetic still come to conviction, as surprised Banon…

    @Matt Bernius:

    One thing I find telling is that across all of these filings and missives, I have yet to see a Trump attorney make an affrimative argument that he declassified the documents while in office. They refer to the declassification power, but have yet to say it was exercised.

    I am genuinely curious as to whether they are keeping that powder dry for future use or if there is another reason they are choosing not to use it.

    As per the laws in play, the actual declassifiation literally doesn’t matter as not being the basis of the law, so why bother? They are obviously playing a media game rather than a proper legal game on this, and for that, being overly precise probably is the wrong play (as likely anyway even on his own terms Trump likely did not follow-through properly on anything).

    1
  23. OzarkHillbilly says:

    @Matt Bernius: I was just reading Marcy Wheeler (or was it Asha Rangappa?) (anyway) and they noted that it doesn’t really matter if he declassified the documents* before Jan 20,2021, because after noon that day he was no longer the classifying authority, Biden was and if Biden decided these sensitive documents should be classified they were. Besides all of which, it wasn’t trump’s property to do with as he wished and he knew it.

    *which presumes he followed thru with proper declassification procedures. yes, its a foggy area of the law, but at noon 1/20/21 the law became very clear. trump was no longer president.

    4
  24. becca says:

    @Matt Bernius: everything I have read says the declassification claims, even if true, are moot.
    Anyhoo, I think the case against trump is major major stuff. Did he out moles and spies, leading to some executions? This would certainly spook some insiders who would prefer not to go the way of the Rosenbergs. Was he taking incriminating docs with him, too? We all know how ruthless he is. Plus, Merrick Garland would not be risking the violence trump will try to unleash for what amounts to unpaid traffic tickets.
    There were multiple informants, and the sheer volume of the redacted names points to lots of solid evidence of a serious crime. That has got to be driving trump insane! Bet he has a torture chamber set up, water-boarding staff and interrogating friends and fam.
    He really is that guy.

    3
  25. Mikey says:

    @Matt Bernius: They’re not using it because it never happened. There is no powder to keep dry. The fact the classification markings on the documents returned to NARA earlier this year were unaltered indicates declassification was not done.

    Even if Trump whipped out his magic declassification wand and waved it over the boxes, it is still required that the declassification be subsequently documented, and the markings stricken, so everyone who comes after will know declassification happened. Lack of documentation proves non-compliance. The documents are not and have never been declassified.

    4
  26. GregR says:

    I honestly think that this loss of support is only temporary for Trump. In the killing of Eric Garner, and later in the coup attempt of January 6th, Republican-aligned media was genuinely taken aback in the moment, hesitated to defend the perpetrators in either case, and even performed limited criticism. In both cases, they settled on full support for the perpetrators after a short period. I think it will be the same in this case as well.

    1
  27. Matt Bernius says:

    Hey all, thanks for the responses. I agree in general with them, though I think that a narrow view that classification doesn’t matter at all in this case isn’t quite correct. I will most likely pay my rationale for that later.

  28. Just nutha ignint cracker says:

    @Tony W: The DOJ, GQP, and FG’s lieutenants will find someone to scapegoat for whatever charges they make–assuming that they ever decide to charge him at all. An eventuality for which I’m not holding my breath.

  29. Just nutha ignint cracker says:

    @Michael Reynolds: Where does he go for the summer? Mar a Lago closes for the summer as it’s too warm there for FG to grift his toadies. Not even evangelical churches go on mission trips to the Philippines during the summer. Way too hot.

    1
  30. Just nutha ignint cracker says:

    @Matt Bernius: Just a guess, but Bill Clinton showed once and for all that you can’t perjure yourself and keep your bar card. Not even about sex in a closet kneehole of a desk with a consenting adult.

  31. CSK says:

    @Just nutha ignint cracker:
    Well, there’s always Russia.

  32. Sleeping Dog says:

    @Matt Bernius:

    Classification won’t mean anything in a judicial court, but it does matter in the court of public opinion. The fact that R’s have been pretty quiet since the affidavit release is an indication of that. America’s most secret intelligence!! Yeah that’ll get peoples attention.

    2
  33. Just nutha ignint cracker says:

    “Stick purely to what is very proveable – not what one can credibly as a Trump Hater believe – but rock solid proveable.”

    Doesn’t provide the “pound of flesh” factor. I suspect that there will be people within this comment pool who will be angry for the rest of their lives that he got away with it. My mom never got over Ted Kennedy not going to the chair for “murdering that poor girl on Chappaquiddick Island,” either.

  34. Just nutha ignint cracker says:

    @CSK: I wouldn’t think that would work out well for him, especially considering how cash poor Russia is becoming, but you never can tell. Give it a roll, Don. 😉

  35. becca says:

    @Sleeping Dog: dead, imprisoned or comprised agents, moles, and spies really got my attention. I think there’s even a timeline from when some docs were requested by trump and the subsequent loss of assets.

    If true, this is beyond treason.

    1
  36. Sleeping Dog says:

    @becca:

    When I read the article in yesterday’s Times that relayed the information as there has been a rash of American intelligence assets disappearing, it focused my attention as well. It maybe coincidence or there was/is a mole in the WH and MaL, we’ll need to wait awhile to find out. But this is beginning to playout like a plot in a John le Carre novel.

    4
  37. JohnSF says:

    I’ve said before, I’ll say again.
    Any hostile TLA, that did not at least try to have an agent inside Mar a Lago, was guilty of gross professional misconduct.
    (I’d add a smiley, but I’m actually serious, for once.)

    If I were “C” (which the world should be thankful I ain’t) I’d be tempted to get a snooper in, if only to find out what the hostiles might find out.

    Has anyone checked out how many foreign shady guys in shades are currently hanging around in Miami?

    I keep joking, but this is the sort of thing that makes allies pack their bags and leave.
    UK shares very high level intelligence with the US; if Trump has gotten one of ours killed, or technical methods voided, we will not be happy bunnies.

    (Goes double for Israel, treble for France, and quadruple for Ukraine)

    4
  38. Michael Reynolds says:

    @Just nutha ignint cracker:

    Where does he go for the summer?

    Well, traditionally hell is hot.

    1
  39. Lounsbury says:

    @Just nutha ignint cracker: The agenda of suceeding at breaking him is one that requires cold calculation. Ice cold calculation. Or he will survive via his usual methods, his one genuine area of competency.

    But Mr Garland does seem to be following that agenda of cold and patient work, however frusrating to the partisan commentariat.

    2
  40. Michael Reynolds says:

    @JohnSF:
    Orange Philby.

    2
  41. JohnSF says:

    @Lounsbury:
    Solid agreement.
    Best to get all your ducks in a row, and quacking according to script.

    The Fouquier-Tinville school of prosecutorial procedure has its appeal.
    But tends to not work so well in the longer term. 😉

    1
  42. JohnSF says:

    @JohnSF:
    *shnork*

    “..add a smiley…”

    I promise that was unintended; I only just realised what I’d written. LOL

    1
  43. OzarkHillbilly says:

    @Matt Bernius: I think that a narrow view that classification doesn’t matter at all in this case isn’t quite correct

    You are right, it does matter, but about as much as a fart in a hurricane. For starters, none of the underlying justifications for the search warrant even mentioned whether the materials were classified or not.

    1
  44. Jen says:

    Taking some of this information in with other statements Trump has made about spies and spying in general (things like “we’re just as bad” and so on), this is looking very very troubling.

    It’s felt for a bit to me like he’s afraid of the FBI coming across something in the morass of papers they’ve secured. The request for a special master to go through the papers before the FBI does, for example.

    This is personal for me. If Trump has handed over so much as a single name to Putin or any other foreign actor, he needs to be brought to justice.

    1