Special Counsel Jack Smith and his team have compiled what appears to be an ironclad case against former President Donald Trump alleging his willful disregard for the law and procedures regarding the disposition of highly classified material. Wrongful disclosure of top-secret material is defined as doing “exceptionally grave damage” to U.S. national security and can lead to up to 20 years of confinement. Thirty-one charges have been filed on those grounds.
The other six pertain to falsifying and withholding records, obstruction of justice and lying to authorities. Given the self-incriminating recordings, Trump’s public statements and the haphazard manner in which hundreds of boxes were stored in unsecured and readily accessed locations in Mar-a-Lago, the evidence of wrongdoing is compelling if not overwhelming. That foreign intelligence agencies have not exploited this opportunity must have been carefully investigated by U.S. security services.
Yet, Trump might beat the rap. Defense attorneys have already argued that the first play is to have the charges dismissed although on what grounds remains unclear. Next, delay, delay, delay will be the tactic. Can the trial be deferred until after the November 2024 election? And if Trump wins, can he pardon himself?
Regardless of when the trial occurs, if Trump is found guilty, it will be appealed. One strategy noted below relies on this proposition. The longer the final verdict can be delayed, the better the chances that Trump can elude or defer judgment.
But suppose Trump is tried before the election. Besides the obvious ploy to find at least one juror to vote to acquit, what other legal strategies might the defense employ to counter what appears to be sufficient evidence to convict? The aphorism is that if the law is on your side, argue the law. If the facts are on your side, argue the facts. If neither is on your side, just argue.
Trump’s defense will do that. In his birthday message last week at his New Jersey golf club, Trump laid out his defense: He will assert that he complied with the Presidential Records Act and was entitled to retain whatever papers he believed fit his description of belonging to him.
Further he will claim that his political rivals politicized the Justice Department to indict him and that had the law been applied without “fear or favor,” Bill and Hillary Clinton, Joe Biden and others would have been prosecuted for mishandling privileged information. Trump even accused former Vice President Dick Cheney of using shredders at his home, presumably to destroy sensitive material.
He also dismissed the relevance of the Espionage Act, arguing that it applies only to treasonous cases. It does not. But perhaps Trump’s twisted logic is that by testing the relevance and jurisdictional authority of these two laws, he is setting the foundation for an appeal that could go to the Supreme Court.
That tactic of course reinforces the delay, delay, delay strategy. Trump’s fallback position seems to be to try and outlast the Justice Department. And if he were re-elected president, the matter would disappear as he would either self-pardon or order the Justice Department to drop the case. In either case, this would force a constitutional crisis of the first magnitude.
While no one can know how this case will unfold or be resolved, one consequence is almost certain. The U.S. political and legal systems will be thrown into chaos. This has happened before.
In 1800, President Thomas Jefferson accused his vice president, Aaron Burr, of treason. During World War I, under the Espionage and Sedition Acts, due process was suspended and private citizens were organized and encouraged to spy on fellow Americans.
The tragedy is that Trump supporters no longer believe in the law or in right or wrong. They are convinced that Trump is a victim. As the election was stolen, the charges against him, no matter how credible, are contrived, false and rigged. If justice were applied equally, Biden, Clinton and others would be in jail.
But this is not only nonsense; it is political plutonium 235. And while the half-life of this case will not be 24,500 years, it could be decades.
Can a nation survive politically when truth and fact no longer count? And can a nation survive when a past and possibly future president is prepared to make a mockery of the law by asserting his superiority in determining what is or is not legal?
America will find out. And the answer may not be to our liking.
Harlan Ullman is a senior adviser at the Washington, D.C., Atlantic Council and the prime author of the “shock and awe” doctrine. His 12th book, “The Fifth Horseman and the New MAD: How Massive Attacks of Disruption Became the Looming Existential Danger to a Divided Nation and the World at Large,” is available on Amazon. He can be reached on Twitter @harlankullman.