The Trump indictment looks like many other federal indictments. Indeed, it is more detailed than most. And it includes salacious and not-completely-surprising anecdotes, which add color and highlight the alleged irresponsibility and carelessness of the former president. On its face, it seems mostly ordinary and legal, although the inclusion of various attorney-client communications is quite unusual.
The thing that you cannot discern from the text is all of the missing subtext.
The Dogs That Didn’t Bark
There is no mention of the Presidential Records Act, executive privilege, or the fact that the president has the original authority to classify or declassify records. The special counsel cites various executive orders regarding classified documents as binding authority over the president, but these are internal rules for the governance of employees of the executive branch. Logically, they cannot constrain the president.
If the president can make and unmake an executive order at his pleasure, it cannot bind him, regardless of whether an order (or its reversal) is published in the Code of Federal Regulations. Like it or not, the president is the source of authority for these rules—by definition. He cannot be confined in a prison to which he has the keys.
This is why the media conniption over his supposed breach of secrecy in meetings with foreign leaders was always fake. That’s called foreign policy. Foreign policy is the president’s job. He is elected by the people to do it. He can decide what to share, when to share it, with whom and how it will be shared. In this and much else, Trump was never treated as a normal president, nor given the deference an elected president deserves in the exercise of his powers. And that should tell us something about these bureaucrats who were supposed to be reporting to him.
One problem with analyzing the indictment or handicapping the likely outcome is the existence of the indictment itself is an injustice. More than that, it is a revolutionary political act. On its face it is outrageous and unprecedented.
No one prosecuted other high-level government officials—including former Vice President Mike Pence or Joe Biden in his capacity as a senator—when each of these characters was found with classified materials. That they admitted to the possession and gave them up is immaterial; under the wording of the Trump indictment, they all could have been indicted for the serious offense of espionage simply for possession of such documents. And, unlike Trump, none of them had any authority to declassify documents.
Also missing from the indictment is that presidents typically are given continuous access to their papers in the form of behemoth presidential libraries. Until President Trump left office, every former president received continuing national security briefings as a courtesy.
A final missing element of context is that the FBI has run cover for Biden since he was vice president for what sound like very serious allegations of bribery and influence peddling. This explains how his hedonistic and self-destructive son made millions and avoided legal problems, even though he had no obvious talents or abilities.
Prosecutorial Discretion
The aforementioned are not things you can see within the four corners of an indictment. These are the unwritten rules and general principles under the umbrella of “prosecutorial discretion.” These are the practices which are supposed to round out the rough edges of the law by infusing important principles of justice, mercy, and respect for public opinion and public order into decisions of whether or not to prosecute.
In the decision not to prosecute then-presidential candidate Hillary Clinton, former FBI Director James Comey made this argument. This was unusual, since the FBI was the investigative agency, subordinate to the Department of Justice, and the attorney general is supposed to be tasked with making that decision.
Even so, the substance of his claim that “no reasonable prosecutor” would have prosecuted Hillary Clinton under these circumstances had some theoretical merit. There are obvious potential impediments to political legitimacy and public order if rival political leaders are subject to prosecution. Such prosecutions should be reserved for the most obvious and serious cases, ones where prosecution will command bipartisan assent.
This is one reason why special or independent prosecutors are controversial. They focus on a single offender, rather than prioritizing cases based on the seriousness of the offense and the likelihood of conviction. This creates some unavoidable bias in their judgments.
There is also little reason to think the special counsel unleashed on Trump would have the relevant kinds of good judgment. Jack Smith has been seconded to the Kosovo war crimes tribunal in the Hague for the last few years. War crimes tribunals are notorious for going after 97-year-old grandmothers in their fanatical desire for convictions. Their spirit is the opposite of a domestic prosecutor, because they are completely indifferent to public opinion.
Indeed, war crimes lawyers do not even work for a single sovereign, strictly speaking. This all suggests Jack Smith may have been hand-picked precisely because of his anticipated fanaticism, which runs counter to the ordinary limits of prosecutorial discretion. It is hard to believe his skill in cultivating public support was a factor; he was profoundly unimpressive and seemed nervous in his explanation of the indictment.
Singling out someone by name, particularly a political opponent, and artificially focusing investigative resources upon him is almost guaranteed to produce something. In Trump’s case, an aggrieved federal bureaucrat working for the national archives thought it was appropriate to blow the whistle and unleash the Justice Department on the former president because he took some boxes with him on the way out the door.
This is the deep state as farce.
The Illusion of Law
If you study enough history, you realize that in media res the bad guys look just like the good guys. Repressive regimes have laws, officials, courts, trials, newspapers, elections, and all the rest. There are subtle differences between these governments and a system with an authentic rule of law, but these differences go mostly unnoticed by the average citizen.
Looking at the now-settled past, everyone likes to pretend they’d be in the French Resistance or help free slaves through the Underground Railroad, but in practice most people go with the flow and follow the established authority.
We are in a late stage of institutional decline and decadence. We are also in a time of heightened political change and repression. Taking account of the spying on citizens, widespread censorship, repressive prosecutions of political enemies, and invasive government interference with private businesses and the family, things that were unthinkable even 10 years ago are now commonplace.
Trump dangerously thinks he can get justice in this milieu. I have already written to suggest his chances for acquittal in the similarly tendentious prosecution in New York are minimal, and that his faith in the system is both touching and dangerous.
As for his federal prosecution, there will still be a jury trial, and a South Florida jury is likely to be far more favorable than one in the rotten boroughs of Washington, D.C. This, however, is cold comfort. There are a lot of ways the prosecutor can rig things to make Trump’s life more difficult, whether it is on pretrial release conditions or the withholding of exculpatory evidence, which has bedeviled the January 6 defendants.
Regardless of the ultimate outcome—and I’m not terribly optimistic—Trump being indicted when no one else in his position would be is itself a major affront. It is the most egregious deep state election interference to date, and it is a sign of the government class’ hatred and distrust of the American people.
Under the circumstances, we should make sure we hate them back.