From its inception as a mission to retrieve documents endangering national security, the search of Donald Trump’s Mar-a-Lago compound has developed into the sharpest of the several daggers at the former president’s throat.
That’s not simply because the evidence linking Trump to the potential crimes specified in the warrant — removal of public documents, violations of the Espionage Act and obstruction of justice — grows ever stronger, but also because his handling of sensitive government property is a stunning example of the essential Trumpian sin: Equating his personal interest with the national interest.
It’s always been clear that the federal government can’t — won’t — bring just any charges against Donald Trump. The circumstances have to justify what will inevitably be a political and constitutional firestorm. The evidence must be ironclad and the wrongdoing has to represent grave offenses against the republic.
Friday’s unsealing of the redacted affidavit justifying the Mar-a-Lago search only underlined the rapid evolution of just such circumstances — a former president diddling, prevaricating and refusing to return secret documents he had no business taking in the first place.
At first it seemed likely that the Justice Department might only be focused on getting the government’s material back where it belonged. But now we know the agency has been hot on the trail of a consequential investigation of the crimes listed in the affidavit for months.
One of the latest, most concrete signs of the DOJ’s investigative efforts are reports of agents questioning Trump insiders about the claim that, when in office, Trump issued a “standing order” to declassify papers that made their way into the White House residence. No hard evidence of such an order has publicly surfaced.
And two recent clumsy maneuvers by Trump only magnified the brazen nature of his claim to the documents.
First came a bizarre and comically deficient motion that suggested a special master identify which documents among those seized by the FBI were protected by executive privilege. In its original form it clarified Trump’s basic stance: Extraordinarily sensitive state secrets belonged to him, not the nation.
“It’s mine,” Trump reportedly told aides about the documents the government wanted back. (Those witness statements, by the way, would be admissible at trial against him.)
The Trump team’s second misfire came with the release of a letter sent to a Trump lawyer by the National Archives in May. It disclosed the huge volume of documents Trump had scooped up before leaving office — at least 700 pages of highly classified material, including some containing closely guarded intelligence sources and methods — as well as his whack-a-mole attempts to hold onto them no matter the law. According to The New York Times, Trump personally went through the boxes in late 2021. That’s an attention-grabbing detail for investigators because it shows he would have known the boxes contained a lot more than negligible White House keepsakes.
These and other facts that keep falling into place comfortably meet the Justice Department’s rules for bringing charges.
It seems quite likely that the DOJ could establish beyond a reasonable doubt that Trump left the White House knowing he was carting away a massive cache of highly classified documents. Likewise, there’s solid evidence that for more than a year he refused to comply with increasingly urgent demands to return them.
It’s also a fair surmise that he could be tagged for criminal responsibility for concealing his continued possession of sensitive documents, including the lie, delivered by an attorney in June, that by then all of the documents had been accounted for. The affidavit’s limited information details Trump’s unwillingness to cooperate; the August search then turned up 20 more boxloads to investigate. That conduct could put him on the hook for obstruction, which carries a statutory maximum of 20 years.
But equally important is the character of Trump’s conduct. Its threat to the national interest is apparent to any fair-minded person, no matter what his crazed MAGA supporters may say. Moreover, these potential crimes illustrate Trump’s historic dereliction as president. Reduced to their essence, they are straightforward manifestations of his core iniquity, his determined use of his office as a personal tool.
Trump has been credibly accused of violating the emoluments clause of the Constitution, attempting to shake down a foreign leader for political gain, inciting the Jan. 6 insurrection and possibly conspiring to overthrow a legitimate election.
Notwithstanding the bromides that the law applies equally to all, the Department of Justice will take the historic, unprecedented step of indicting a former president only if it has a case that is nearly bulletproof in its evidence, and that captures, to a high degree of social consensus, the broad evil of the Trump presidency.
A few weeks ago, it seemed that a case built on what happened on and before Jan. 6 was the most likely to meet those criteria. That prospect is now on the back burner, while the potential charges growing out of the Mar-a-Lago search are beginning to boil furiously.
