At this point, Trump may be talking up the National Archives as his latest “radical left wing” villains when it comes to interviews with Sean Hannity, but the truth is that Trump has pretty much zero concern for the 11,000 documents taken from Mar-a-Lago and destined to come under control of the Presidential Records Act. Will those documents contain examples of his greed, vanity, and disdain for the nation? Of course they will. And it won’t change a thing.
It’s the 103 classified documents that really concern Trump. Because “Donald Trump took this Top Secret document describing secrets of the [insert nation here] nuclear program and refused to give it back, even under subpoena” is exactly the kind of charge that a grand jury can easily understand when raising their hands in favor of an indictment. And that’s assuming that all those empty folders don’t represent classified documents that have gone completely missing, because that’s an even simpler charge.
What’s happening with the Jan. 6 investigation, and the broader investigation of attempts to overturn the 2020 election is difficult to discern, because so much of that investigation has happened under seal or behind closed doors. What’s happening with the document search at Mar-a-Lago is very public. It’s also very simple: Trump stole documents. He lied about them to federal agents. He refused to return them. He’s lying about them still.
What we can see of the investigation into classified documents recovered from Mar-a-Lago represents the greatest single chance that Donald Trump will be indicted on criminal charges within the next few months. How good the odds of the FBI showing up at Mar-a-Lago to retrieve something other than documents might be is hard to tell, but it is a non-zero chance. And Trump knows it.
Which points immediately back to that decision by the court appeals. By overturning the, at best, misguided ruling of Judge Cannon, the 11th Circuit switched the criminal investigation into those documents back to “on.” And you can bet that there is are a metric ton of attorneys and investigators at the DOJ burning the midnight oil on this, even over the weekend, because they understand that Trump—or Cannon—could put the brakes on tomorrow with some other appeal, or half-assed ruling, that sends this all trundling toward the Supreme Court.
The other thing that happened to kneecap Trump this week was a triple play by Judge Dearie. First, Dearie challenged the idea that Trump had declassified any of the documents involved, whether that occurred by telepathy or something that looked like an official process. When Trump’s attorneys once again tried the “maybe he did, maybe he didn’t” play that Trump has used so long, Dearie did what any reasonable judge should have done at the outset — put that down as a “no.” All the documents the government says are classified, are to be treated as classified. Done and dusted.
Next, Dearie laid out a timeline that has all of this wrapping up before the mid-terms. Trump’s not on the ballot, and whether this goes before or after is unlikely to make much difference (Unless the press can spend the last week before the election pinning down Republican candidates and making them give a statement on how the feel about the outcome, which sounds … not at all like the modern national press.) But in any case, Dearie’s timeline sucked back over a month from Trump’s delay machine, and that has to have Trump fuming.
Finally, Dearie directly challenged Trump’s team over public statements hinting (heavily) that the FBI had planted documents in the material. Now Trump’s attorneys are going to have to go through the list and say yea or nay to everything that the FBI carried away. If Trump says the FBI planted something, he’ll get a chance to prove that — against a search in which you better bet the FBI carefully documented each step. If Trump admits that a document was in his desk drawer to begin with, then he’s admitting to having in his possession a document that was both illegal to remove and the object of a federal subpoena. That’s going to be fun.
Really, when the 11th Circuit made its ruling, the whole special master process might as well have been over for Trump. What he wanted out of the whole thing was already gone. Dearie’s rulings just made the next month more painful. Now Trump has to set through a process that can’t do a thing to help him.
And he also gets to pay for it.
Good judges are more important now than ever. In some states, judges are on the ballot this November. In this episode of The Downballot, we shine a spotlight on elections for state supreme courts: actor and activist Julia Louis-Dreyfus. Together, Daily Kos and Julia are proud to announce their endorsement of seven Democratic candidates running for closely divided courts in Michigan, North Carolina, and Ohio. You can support this slate by going to JusticewithJulia.com and donating today.
Author: Mark Sumner