I have had virtually no experience in my life of the inner workings of bureaucratic institutions, so I may be all wrong, but it seems to me that the current flap about classified documents found in Biden’s various homes and storage spaces is what they call in tennis commentary an unforced error. Let me explain.
The White House, as I understand it, has a staff of several
hundred people whose job it is in one way or another to advance the president’s
interests and make him or her look good. Last October, when the FBI conducted a
search of Trump’s Florida estate, and found masses of classified documents that
had not been returned and whose existence had been denied, it seems to me that
someone in the White House – perhaps a high-ranking official or maybe just a
low-level flunky – should have thought, “wouldn’t it be awful if some documents
of that sort turned up in Pres. Biden’s storage spaces?”
It is obvious that if the documents were there, sooner or
later they would become public and it would be infinitely better to find them
now, announce publicly that they had been found and had been immediately
returned, and, as they say, get on top of the story. I mean, how much brains
does it take to think of that?
Since the president has endless resources to tap for such
tasks the whole thing could have been done in a few days way back in August. Say what you will about Biden, his strong
suit is supposed to be that he has been around Washington forever and knows its
ins and outs. Why on earth did this not occurred to him?
Regardless of the report of the special counsel appointed to
investigate Biden’s classified documents problem, I think it is now politically
impossible to bring charges against Trump on that matter, at least until he has
been charged with something else more serious. I repeat what I have said before:
my hopes are placed on the Fulton County, Georgia district attorney.
14 comments:
Here's hoping that the people in charge of deciding whether to prosecute Trump for this or that crime aren't thinking about what's politically possible for them to do. Hopefully they just apply the law
Garland appointed Jack Smith as special counsel to complete the investigations into two sets of matters relating to Trump: (1) the documents and (2) the Jan. 6-related allegations. Even if (1) is out of the question now, there's still at least a possibility that charges will be brought on (2).
Indeed, it was not that long ago that certain commenters on this blog were saying that the fact that Garland had appointed Smith meant that charges were very likely to be brought. That was not my opinion, but there were people saying that here, including one regular commenter who was formerly a lawyer with the Dept. of Justice.
Prof. Wolff,
Unfortunately, it is has been my experience that your expectation that government employees would anticipate problems and act to avoid or mitigate them before they become serious cannot be relied on. This is due, in my opinion, to two factors; (1) the variations of potential problems which may arise are too large to be anticipated; (2) the level of negligence, avoidance of responsibility and reliance on others not to be negligent is too high. This is true even in the judicial system in which I have experienced numerous instances where court clerks and judicial clerks have been negligent, resulting in legal complications which required additional time and money to rectify. I have had instances in which a clerk has changed a hearing date without my being informed, resulting in my being absent from the hearing and the judge dismissing the motion because I was not present for the hearing. Or a clerk erroneously claiming that the filing fee for the lawsuit had not been filed, dismissing the lawsuit, requiring refiling and repaying of the filing fee. The majority of humans are constitutionally irresponsible and unwilling to admit their errors.
LFC,
To avoid any confusion, I have never worked for the Justice Dept.
Marc,
I was referring to David Palmeter, who did, I believe, work for DOJ, though I think you tended to agree w him on the pt in question if I recall correctly.
I do still retain the belief that Trump will be prosecuted for inciting the Jan. 6 insurrection, for which, fortunately, there is no parallel analogue which can be pinned on Pres. Biden.
LFC,
I was indeed the predictor of a Mara-Lago case coming quickly, and indeed that hasn't happened. I'm not sure why. One possibility is simply DOJ staff. Jan. 6 has employed a multitude of staff, professional and other. That might be it. Perhaps more likely are the security questions: Do we have all of Trump's dox? Who had access to them? These most likely would take priority over prosecuting.
With the case in a special prosecutor's hands, it's hard to say what he is prioritizing. I was stunned a couple of weeks ago when he subpoenaed the Georgia officials in the Jan. 6 probe--not that they shouldn't be subpoenaed, but that it hadn't been done earlier by DOJ itself. That also suggests a staff being overwhelmed.
With both Biden's and Trump's documents cases being handled by special prosecutors, I don't see any possibility of political factors entering into their decisions. Smith is directed to prosecute Trump if the evidence warrants, the politics be damned. Ditto Biden's SP (forgot his name). Of course, at end the road, Garland has the final say, but I'm sure he will play it by rules--evidence-based only--and leave the politics to someone else. It would be very hard for him not to accept his SPs' recommendations.
The Republicans will contend that the offenses are identical and should be treated identically – if Trump is prosecuted, so should Biden be prosecuted. But, of course, they are not factually the same, as Prof. Wolff and others have noted. This factual difference can justify prosecuting an ex-President, where prosecution will not interfere with his governing the country, versus a sitting President, whose prosecution under decidedly different and less serious facts would interfere with his governing the country. The Republicans would, of course, cry foul!
David P.
Thank you for the reply/comment.
Seeing and hearing a Korean choir and dancers performing “Amazing Grace,” a serious song about slavery, with colorful costumes and swirling fans and ribbons at the Ebenezer Baptist Church this morning missed the mark for me, and I suspect for many members of the audience, who applauded politely.
David and LFC,
The only reason I can think of that may be why Trump hasn't been indicted is that there may be possible additional charges that DoJ may be still investigating. For example, is the investigation into the damage to national security interests still incomplete, or did they uncover some indications that Trump gave info from classified documents, or the documents themselves, to a foreign government.
Christopher,
That may be the case, and/or it could also be that Smith will decide after finishing the investigation to recommend not filing charges. Prosecutors have very wide discretion, and there cd be a few reasons why D of J decides in the end not to indict. That said, we'll just have to wait and see.
Btw, MLK's key writings are available in _A Testament of Hope: The Essential Writings and Speeches_. (I don't have it but am planning to get it.)
The syllabus of a political philosophy course that MLK taught at Morehouse can be seen online at the Daily Nous blog.
LFC,
I guess what I do not understand about Trump's various crimes and his possible indictment is this: in my view there is no alternative but to indict him whenever the DoJ can. The documents case is as clear cut as a case can get. first it's against the law to steal presidential records and second, it's obstruction of justice to not hand over the documents. The Fulton County case is another that seems to be a slam dunk. If the sedition charge is more problematic than the others, it is still a political necessity to try Trump and other conspirators.
I view it as a necessity because if the government can't successfully try and convict the leaders of the insurrection then there is no deterrent to others attempting the same and it will happen again. Failure to indict when there is prima facie evidence of criminality will be evidence that the "rule of law" is an even bigger joke than Trump. It will also demonstrate that government is even less functional than its current low level, less competent than we knew, and whose legitimacy is zilch.
The delusions of the maga party are motivating more than just turn out during elections. It is motivating violence, as was reported yesterday in the Albuquerque paper and picked up by national news outlets, that they arrested a failed republican candidate for a state house seat who hired people to shot up the homes of democratic politicians because they apparently didn't take his claims of fraud seriously.
Regardless of when and where Trump is charged, and what actual charges are brought, the immediate benefit will be seeing Trump in court, on the witness stand defending himself. Convictions or not, this will end his career in politics.
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