Issue of the Week: Human Rights
Another first in American history has happened, and not a good one, related to Donald Trump. The front page article in the Sunday New York Times, posted today, and the editorial tomorrow, also posted today, tell the story:
“Trump’s Case Puts the Justice System on Trial, in a Test of Public Credibility”
By Peter Baker, June 11, 2023
The former president’s efforts to defend against multiple felony counts by discrediting law enforcement pose a grave challenge to democracy.
By Peter Baker, June 11, 2023
Peter Baker has covered the White House under the past five presidents, including all four years that Donald J. Trump was in office. He reported from Washington.
Former President Donald J. Trump has a lot at stake in the federal criminal case lodged against him. He could, in theory, go to prison for years. But if he winds up in the dock in front of a jury, it is no exaggeration to suggest that American justice will be on trial as well.
History’s first federal indictment against a former president poses one of the gravest challenges to democracy the country has ever faced. It represents either a validation of the rule-of-law principle that even the most powerful face accountability for their actions or the moment when a vast swath of the public becomes convinced that the system has been irredeemably corrupted by partisanship.
Mr. Trump, his allies and even some of his Republican rivals have embarked on a strategy to encourage the latter view, arguing that law enforcement has been hijacked by President Biden and the Democrats to take out his strongest opponent for re-election next year. Few if any of them bothered to wait to read the indictmentbefore backing Mr. Trump’s all-caps assertion that it was merely part of the “GREATEST WITCH HUNT OF ALL TIME.” It is now an article of faith, a default tactic or both.
Jack Smith, the special counsel, and his prosecutors knew that defense was coming and have labored to avoid any hint of political motivation with a by-the-book approach, securing the assent of judges and grand jurors along the way. Moreover, their indictment laid out a damning series of facts based on security camera video, text messages and testimony from within Mr. Trump’s own team; even some who have defended him in the past say it will be harder to brush aside the evidence in a courtroom than in the court of public opinion.
In the public arena, though, it may be a one-sided fight. Mr. Trump and his allies can scream as loudly as they can that the system is unfair, but prosecutors are bound by rules limiting how much they can say in response. To the extent that Democrats defend prosecutors, it may only buttress the point Mr. Trump is trying to make to the audience he is trying to reach.
“I think the verdict on democracy ultimately comes down to Republican leaders and Republican voters,” said David Jolly, a former Republican congressman from Florida who left the party during the Trump presidency. “Their current weaponization narrative is dangerous and destabilizing, but seems to reflect the party’s early consensus. If they don’t pivot soon to due process and faith in the system, I think we could have very dark days ahead. I do worry.”
Polls suggest that Mr. Trump has made headway in persuading at least his own supporters that any and all allegations against him are just political. After the Manhattan district attorney, Alvin L. Bragg, brought state charges against him related to hush money paid to an adult film actress, the former president’s support among Republicans rose, rather than fell.
While 60 percent of all adults surveyed by CNN afterward approved of the charges, 76 percent agreed that politics played a role in the prosecution. As for the effect on America’s system, 31 percent said the indictment strengthened democracy, while 31 percent said it weakened it.
All of which indicates that the system’s credibility is on the line in a way it has not been before. Many have criticized American justice over the years for systemic racism, excessive punishment, mistreatment of women subjected to assault or other issues, but they did not command the bullhorn of the presidency. When past presidents like Richard M. Nixon or Bill Clinton got in trouble, they defended themselves aggressively, but did not call the whole system into question.
How the Trump Documents Inquiry Began
- What the F.B.I. Seized: On Aug. 8, 2022, the F.B.I. descended on former President Donald Trump’s Mar-a-Lago estate in search of sensitive government documents he took with him when he left office. Here’s what agents recovered.
- Inside Mar-a-Lago: A New York Times investigation shows how Trump stored classified documents in high-traffic areas at his Florida home and private club, where guests may have been within feet of the materials.
- Timeline: The federal government tried and failed for more than a year and a half to retrieve the classified documents from Trump. These are the key events that led to the F.B.I. search.
- The Search Warrant: The warrant that authorized the F.B.I.’s search listed three criminal laws as the basis of its investigation. Read the warrant.
“In 1972 to 1974, the Republicans participated as good-faith members of the process,” said Garrett Graff, the author of “Watergate: A New History,” published last year. “They saw their roles as legislators first and Republicans second. They definitely were skeptical” initially of the allegations against Nixon, “but they followed the facts where they led.”
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Even Nixon’s sharp-tongued vice president, Spiro T. Agnew, was careful about disparaging the justice system broadly. “Agnew, of course, was Nixon’s attack dog, but mainly against the press, not the F.B.I. or the special prosecutor,” Mr. Graff said.
Mr. Trump, on the other hand, is holding nothing back as he assails “the ‘Thugs’ from the Department of Injustice” and calls Mr. Smith a “deranged lunatic.” Republicans like Representative Andy Biggs of Arizona have called for dismantling the F.B.I. “We have now reached a war phase,” he wrote on Twitter on Friday. “Eye for an eye.” Elon Musk said the authorities were showing “far higher interest in pursuing Trump compared to other people in politics.”
Several of Mr. Trump’s competitors for the Republican presidential nomination joined in. Former Vice President Mike Pence compared the indictment to leaders of “third-world nations” who “use a criminal justice system in their country against their predecessors.” Gov. Ron DeSantis of Florida said “the weaponization of federal law enforcement represents a mortal threat to a free society.”
The former president’s defenders generally do not address the substance of the 37 counts against him, but instead make a case of selective prosecution that resonates powerfully among many Republicans: What about Mr. Biden? What about Hunter Biden? What about Hillary Clinton?
They point to the origin of the Russia investigation against Mr. Trump, citing the recent report by the special counsel John H. Durham that harshly criticized the F.B.I. for its handling of the case even though it did not come up with any new blockbuster revelations of politically motivated misconduct nor result in the conviction of any major figure.
They point to Republican congressional inquiries that they say hint at wrongdoing by the Bidens even without confirmation. They point to the continuing federal criminal investigation of the president’s son Hunter, suggesting it has been impeded. And they point to the fact that the president himself is also under investigation over retaining classified documents yet not charged.
The differences between the cases, however, are stark, making apples-to-apples comparisons complicated. In the documents investigation, for instance, Mr. Biden’s advisers by all accounts so far returned the papers to the authorities promptly after discovering them. Mr. Pence did the same after a voluntary search found that the former vice president had kept classified documents, and he was recently cleared by the Justice Department because there was no evidence of willful violations of the law.
Mr. Trump, by contrast, refused to hand over all the documents he had taken from the White House — even after being subpoenaed for them. According to the indictment, he orchestrated an expansive scheme to hide papers and feed lies to authorities seeking them. On two occasions, the indictment charged, Mr. Trump showed secret documents to people without security clearance and indicated that he knew he was not supposed to.
As for seeking to weaponize the Justice Department, there was ample evidence that Mr. Trump sought to do just that while in office. He openly and aggressively pushed his attorneys general to prosecute his perceived enemies and drop cases against his friends and allies, making no pretense that he was seeking equal and independent justice. His friends-and-family approach to his pardon power extended clemency to associates and those who had access to him through them.
He chipped away at so many norms during his four years in office that it is no wonder that institutions have faced credibility problems. Indeed, he has made clear that he does not respect the boundaries that constrained other presidents. Since leaving office, he has called for “termination” of the Constitution so that he could be returned to power without waiting for another election and vowed that he would devote a second term to “retribution” against his foes while pardoning supporters who stormed the Capitol on Jan. 6, 2021, to stop the transfer of power.
There is no known evidence, on the other hand, that Mr. Biden has played any role in the investigations against Mr. Trump. Unlike the voluble Mr. Trump, he has made a point of not even publicly commenting on individual prosecutions, saying he respects the autonomy of the Justice Department.
Attorney General Merrick B. Garland has been sensitive to the matter of perception and sought to insulate the inquiries by appointing Mr. Smith, a career prosecutor who is not registered with either political party, as a special counsel with a guarantee of independence absent manifest wrongdoing on his part.
But that was never going to convince Mr. Trump or his most fervent supporters of the fairness of the process. At bottom, the former president and front-runner for his party’s nomination to be the next president is being charged by a prosecutor appointed by an appointee of the man he hopes to beat. It is a recipe for distrust, especially when stoked by a defendant who has mastered the politics of grievance and victimhood.
Will that result in lasting damage to democracy? Even some who support charging Mr. Trump fear that it may. Still, some who have studied politically fraught investigations counseled patience. There will be fireworks. Many will doubt the credibility of the system. But in the end, they said, the system will survive just as it has for more than two centuries.
“It’s messy and uncomfortable for the generation living through it, but the system is durable enough to win out,” said Ken Gormley, the president of Duquesne University and the author of books on Watergate and the Clinton investigations. “As painful as the next year is likely to be as the criminal justice system grinds forward toward a fair verdict in the Mar-a-Lago documents case — whatever that outcome may be — we are fortunate that our predecessors have spent 234 years shoring up the bulwark.”
Peter Baker is the chief White House correspondent and has covered the last five presidents for The Times and The Washington Post. He is the author of seven books, most recently “The Divider: Trump in the White House, 2017-2021,” with Susan Glasser.More about Peter Baker
THE EDITORIAL BOARD
“Donald Trump Should Never Again Be Trusted With the Nation’s Secrets”
June 9, 2023
By The Editorial Board, June 11, 2023
The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values. It is separate from the newsroom.
It is hard to overstate the gravity of the criminal indictment issued against Donald Trump late Thursday by a federal grand jury. For the first time, a former president has been charged with violating federal laws, laws that he swore to uphold just over six years ago. It is the first time a former leader of the executive branch has been charged with obstructing the very agencies he led, and the first time a former commander in chief has been charged with endangering national security by violating the Espionage Act.
The indictment, unsealed on Friday, accuses Mr. Trump of 37 crimes. The majority of them — 31 of the counts — are for willful retention of national defense information, each a violation of the Espionage Act. There is one count of conspiracy to obstruct justice, in which Mr. Trump is accused of conspiring with his personal aide, Walt Nauta, to hide classified documents from the F.B.I. and the grand jury investigating the case. The other charges involve withholding documents, corruptly concealing documents and making false statements to law enforcement authorities.
The potential prison sentences for Mr. Trump add up to as much as 420 years, even though conviction almost never results in the maximum sentence. But this indictment confronts the country with the harrowing prospect of a former president facing years behind bars, even as he runs to regain the White House.
Mr. Trump and his Republican allies are already trying to politicize the indictment, insisting that the charges issued by 23 randomly chosen residents of South Florida were an attempt by President Biden to demolish his rival. But the evidence compiled by the government is so substantial that it is clear the Justice Department had no choice but to indict.
The indictment says that Mr. Trump not only took from the White House classified documents that he was not authorized to possess but also that he showed them to visitors and political cronies at his country club. One of the documents involved a potential attack on another country, which The New York Times has reported was Iran. “Isn’t it amazing?” he asked one visitor, brandishing the document. During that conversation Mr. Trump acknowledged that he knew the document was “a secret,” the indictment said.
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The details in the indictment make it clear that Mr. Trump knew that he was not authorized to keep national security secrets in his possession and that he played a cat-and-mouse game to conceal them from the F.B.I. and other federal officials. At one point he suggested his lawyer take some documents to his hotel room and “pluck” out anything really bad, the indictment says. “Wouldn’t it be better if we just told them we don’t have anything here?” he asked his lawyers. He added, “Well, look, isn’t it better if there are no documents?” Meanwhile, he instructed his lawyers to falsely inform federal investigators that they had cooperated fully.
With these actions, the former president demonstrated once again his contempt for the rule of law, his disregard for America’s national security and his mockery of the oath he took to support and defend the Constitution.
Mr. Trump walked out of the White House with details of the nuclear capabilities of the United States and a foreign government, descriptions of support for terrorist activities by a foreign country and communications with the leader of a foreign country. It is the willful retention of this material that led to the 31 charges of violating the Espionage Act, which makes it a crime if someone deliberately retains national defense material “and fails to deliver it to the officer or employee of the United States entitled to receive it.”
Mr. Trump’s recklessness in retaining and showing off military secrets is both arrogant and breathtaking. It put the lives of American soldiers at risk. These are some of the United States’ most closely guarded secrets — so sensitive that many top national-security officials can’t see them — and Mr. Trump treated them like a prize he had won at a carnival. These actions underscore, yet again, why he is unfit for public office.
What makes the spectacle all the more stunning is that it was entirely unnecessary. Had Mr. Trump responded to the many formal requests to return the wrongfully taken documents by apologizing and handing them over immediately, he would have avoided any confrontation with federal law enforcement. That’s what responsible public servants like Mr. Biden and former Vice President Mike Pence did when classified material was found among their papers.
The former president’s defenders rushed in to call it political persecution. “It is unconscionable for a President to indict the leading candidate opposing him,” wrote the House speaker, Kevin McCarthy, in a tweet before the indictment was unsealed, as if Mr. Biden had any involvement in these charges.
To make an accusation that a prosecution is a purely political act — one that will undermine the public’s faith in an independent judiciary — is a serious charge and requires at least some basis in fact before it is irresponsibly broadcast to the world. There is no support for that charge, because it requires ignoring two years of evidence painstakingly collected by nonpolitical law enforcement investigators. The Justice Department appears to have followed the basic processes and rules already in place to reach this decision. The public is now able to judge for itself whether the government has a serious case and whether it is actually the Republican critics who are the ones doing the instant politicizing.
And Mr. Trump will be afforded due process, including a trial by a jury of one’s peers and the right to appeal a guilty verdict — all the protections the Constitution guarantees.
The Justice Department’s role is to apply the law equally, without regard to the status or political affiliation of the accused lawbreaker. That’s what makes this indictment so necessary: Federal prosecutors have sought and won convictions in dozens of classified-document cases involving behavior less egregious than Mr. Trump’s. And that’s why the claims of a witch hunt are lamentable. Don’t take it from us; listen to Mr. Trump’s own former attorney general, Bill Barr.
“This says more about Trump than it does the Department of Justice,” Mr. Barr said on “CBS Mornings” on Tuesday. “He’s so egotistical that he has this penchant for conducting risky, reckless acts to show that he can sort of get away with it.” He added, “There’s no excuse for what he did here.”
It’s become common during the past eight tumultuous years to invoke the term “unprecedented” — a useful shorthand for Mr. Trump’s compulsion to upend established norms and blow past crucial democratic guardrails. But his unprecedented behavior should not obscure an equally important point, which is that the response to it has many precedents.
The United States has prosecuted dozens of former governors, cabinet members and lawmakers. These prosecutions are essential in reaffirming the principle that no one — and especially no political leader — is above the law. To fail to bring such a case is to make it more likely that other abuses of power will occur.
More on the indictment of Donald Trump
Opinion | Norman Eisen, Andrew Weissmann and Joyce Vance
Trump’s Misconduct Was Too Brazen Not to Charge
The More Opposition Trump Faces, the More Popular He Becomes, and He Knows It
Source photograph by Mandel Ngan, via Getty Images.
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The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values. It is separate from the newsroom.
A version of this article appears in print on June 11, 2023, Section SR, Page 11 of the New York edition with the headline: The Justice Department Had No Choice.