February 11, 2022 | Reading Time: 3 minutes

Trump committed crimes when he took ‘top secret’ files. If prosecution is ‘politicizing the law,’ then he’s above it

If any other government employee were caught with a trove of classified documents, they would face criminal investigation.


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This week, we learned that Donald Trump liked to eat presidential paperwork. A former aide told MSNBC that she saw him masticating memos

Now we hear that the White House toilets periodically clogged with official records which, legally, should have gone to the National Archives Records Administration (NARA). 

It’s all too gross to contemplate, but at least it explains why Trump was always railing against low-flow toilets. The former president famously blamed water-saving commodes that he said were forcing Americans to flush “10 times, 15 times, as opposed to once.” 

Trump might actually get away with stealing classified information because Republicans have made this kind of investigation synonymous with a political witch hunt. 

You’d have to flush a lot, too, if the only source of fiber in your diet was the President’s Daily Briefing. All this brings new meaning to the phrase “document dump.”

Legally, every document that has any connection with the president’s official duties must be preserved for posterity under the Presidential Records Act. Trump was warned, but he kept shredding paper like a hamster honing its incisors. Trump’s aides recall him ripping up everything from memos and letters to post-its. 

Trump’s aides tried to keep him on the right side of the law by taping papers back together when they could, or sending the fragments off to the archives in pieces. The National Archives and Records Administration even had a team whose job was to reassemble documents that Trump had ripped to shreds and strewn about the White House and Air Force One. This was a miserable, menial job that the senior staffers entrusted with the task regarded as punishment. 

No word on whether these long suffering civil servants were called upon to reconstruct half-flushed documents, but one assumes those were gone for good.

Shockingly, the Presidential Records Act has no enforcement mechanism. It’s the law, but it’s really just an honor’s system, which is probably why Trump never made the slightest effort to comply with it. 

The archivists may still have the last laugh, however. 

NARA recovered 15 boxes of documents from Trump’s Mar-a-Lago estate. These materials were supposed to have been left in the White House at the end of Trump’s term, but he took them. 

Upon further examination, NARA officials discovered that the purloined boxes contained classified information

And not just any classified information. 

Documents in those boxes were reportedly marked Top Secret, a designation reserved for information that “could be expected to cause exceptionally grave damage” to national security if it were disclosed without authorization. 

So Trump sneaking off with this stuff is potentially a much more serious offense than mutilating presidential paperwork. If Trump knowingly absconded with classified material, that’s a serious crime, the kind that sends people to prison. 

NARA approached the Justice Department and requested an official investigation. It must now decide whether to pursue the matter. 

The Times immediately threw cold water on the idea, reporting (as fact, not opinion) that, “If Mr. Trump was found to have taken materials with him that were still classified at the time he left the White House, prosecuting him would be extremely difficult and it would pit the Justice Department against Mr. Trump at a time when Attorney General Merrick B. Garland is trying to depoliticize the department.” 

It might be difficult to prove that Trump knowingly and willfully took classified documents, but we’ll never know without an investigation. 

By reporting opinion as fact, the Times is preemptively taking the pressure off the Justice Department to investigate by telling the public that it would be too hard to prosecute and too “political.” 

For the paper of record to characterize the prosecution of such a crime as an inherently political matter is tantamount to declaring the former president above the law. 

The same Times story notes that Hillary Clinton faced a grueling investigation by the Justice Department that never turned up enough evidence to charge her with any crime. 

The Times hyped the emails story incessantly during the 2016 campaign, insisting with a straight face that Clinton’s information technology policies were matters of grave national importance. 

Now that a former Republican president has apparently removed classified documents from the White House, prosecuting him would be unforgivably “political.” 

The Clinton investigation was improperly political because there was no prima facie evidence of criminality. The whole thing was a fishing expedition spurred on by Republican elected officials and their credulous enablers in the mainstream media. 

Whereas, Donald Trump has been caught red-handed with classified documents illegally removed from the White House. If any other government employee were caught with a trove of classified documents in their home, they would face criminal investigation. 

The Republicans stand to benefit twice from their persecution of Hillary Clinton. 

They reaped the political benefits of a frivolous investigation in 2016. What’s more, that investigation was so obviously frivolous and malicious that it has discredited the whole idea of prosecuting high-ranking elected officials for misusing classified information. 

Trump might actually get away with stealing classified information because Republicans have made this kind of investigation synonymous with a political witch hunt. 

The laws against mishandling classified information have teeth for a reason. 

If laws governing the handling of classified information become a dead letter, the Republicans will have struck another grave blow against the rule of law. 

Lindsay Beyerstein covers legal affairs, health care and politics for the Editorial Board. An award-winning documentary filmmaker, she’s a judge for the Sidney Hillman Foundation. Find her @beyerstein.

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