From Justifying Trump to Justifying Autocracy
Explaining away his lawlessness by claiming he *is* the law.
IN DONALD TRUMP’S FOUR YEARS as president, the Republican party became increasingly authoritarian through a simple formula: Each time Trump crossed a line—firing people who investigated him, usurping the power to appropriate money, extorting a foreign government to help him win re-election—his apologists claimed that whatever he had done was within his rights.
That pattern has continued since Trump left office. According to the indictment issued last week by a Florida grand jury, Trump took sensitive national security documents to Mar-a-Lago at the end of his term and then—unlike any other former president—illegally concealed many of these documents and withheld them from the FBI, even after the documents were subpoenaed.
Trump says he was fully entitled to do this. “The president enjoys unconstrained authority to make decisions regarding the disposal of documents,” he declared in a speech on Tuesday, hours after his arraignment. “Whatever documents a president decides to take with him, he has the right to do so. It’s an absolute right.”
Once again, Trump is testing America’s tolerance for autocracy. And once again, his allies on the right are backing him up with extreme and dangerous theories of vast presidential power. Here are some of their arguments.
1. A former president is entitled to obstruct investigators if he doesn’t trust them.
John Yoo, a former deputy assistant attorney general, says Trump’s lawyers can argue that “he didn’t initially cooperate with DOJ or the FBI because of the way he’d been mistreated by them.” Alan Dershowitz, who represented Trump at his second impeachment trial, goes further. According to Dershowitz, it doesn’t matter whether Trump was truly mistreated; his subjective perception is enough. In defense of Trump’s defiance of the FBI, Dershowitz asserts: “A president doesn’t have to cooperate with people he believes are trying to get him.”
2. A former president is entitled to withhold documents from investigators based on his belief that he declassified the documents.
Here, again, Dershowitz suggests that facts don’t matter; all that matters is the former president’s perception. According to Dershowitz, “If President Trump believes he had declassified the material before he left the White House, then he had no obligation to turn them over to the [National] Archives.”
3. Federal law grants a former president sole authority to decide what he can keep.
“The only statute that applies to Donald Trump on this is the Presidential Records Act,” says Christina Bobb, a Trump lawyer. The PRA “specifically says the president, and only the president, is the one who has authority to make this call.” Bobb is wrong. The PRA is one of several laws pertaining to such records; others are mentioned in the indictment. But like many other Trump apologists, she uses the PRA to reason that no other laws apply to Trump.
4. The mere act of taking documents makes them the former president’s rightful property.
According to Fox News host Jesse Watters, “When Bill Clinton took [certain] records from the White House back to Chappaqua, the act itself of taking them home—to his home—made them personal records,” beyond the government’s jurisdiction. Based on this premise, Watters asserts, Trump’s lawyers in the Mar-a-Lago case could have “squashed the subpoena immediately.”
5. A former president is entitled to hide documents from investigators, as long as he doesn’t destroy them.
On Friday, Fox News anchor Martha MacCallum, reading from a summary of the indictment, explained to fellow Fox News host Mark Levin that Trump had allegedly directed an accomplice “to move boxes of documents to conceal them from Trump’s attorney, the FBI, and the grand jury.” Levin replied that these evasive maneuvers weren’t important, even if the documents were under subpoena, since Trump apparently hadn’t destroyed them. “So he moved boxes around. . . . So what?” scoffed Levin. “Was there a subpoena out there? It doesn’t matter.”
6. A former president is entitled to destroy documents.
Jim Trusty, another Trump attorney, suggests that because Trump had the power to declassify documents as president—which is true, but no longer applies after he left office—he was entitled, at Mar-a-Lago, to destroy them at will. “You can’t even obstruct a non-crime,” says Trusty. Therefore, Trump “could have had a party throwing stuff in a bonfire, and it wouldn’t be obstruction.”
7. A former president can ignore rules about sensitive documents because the people who make and enforce those rules are corrupt.
“It’s the intelligence community that determines what our government secrets are and what the protocols are with that information,” says CPAC chairman Matt Schlapp. “This is the same community that corruptly and illegally spied on Trump,” Schlapp argues, and now “it’s the same intelligence community that, when Trump is out of power, is still trying to get him on jaywalking and parking tickets.” Many of Trump’s allies view the FBI this way: They think it’s biased and illegitimate, so Trump can defy it with impunity.
8. Former presidents are exempt from the classification system.
Republican presidential candidate Vivek Ramaswamy argues that Trump can’t be prosecuted because “the classification scheme itself was defined not by statute, but by executive order,” and “executive orders, appellate courts have held, do not bind a U.S. president with the force of law.” By this logic, Trump’s entire argument about having declassified the documents is irrelevant because, according to Ramaswamy, the system simply doesn’t apply to Trump.
9. Congress can’t constrain a former president’s treatment of documents.
Jesse Binnall, yet another Trump lawyer, contends that even if Congress tried to make “former presidents subject to the Espionage Act for documents created during that president’s term of office,” such a law “may very well be found to be unconstitutional,” because “traditionally, presidents actually owned the presidential documents created during their term.” Francey Hakes, a former federal prosecutor, told Fox News that any law passed by Congress might be nullified by a president’s “inherent authority to take documents when he leaves office.” On this theory, nothing short of a constitutional amendment could hold Trump accountable to federal statutes.
10. No former president should be prosecuted.
Yoo says the feds should “let Donald Trump go” because America’s “institutional norm” is to “leave former presidents alone.” Prosecuting Trump would cause too much harm, according to Yoo, because it would “make future presidents worry about being prosecuted for their tough decisions.” Yoo hasn’t suggested that this defense should be applied to shooting somebody on Fifth Avenue. But in theory, it could be.
11. Prosecution of a former president who seeks re-election is like a coup.
Kimberly Guilfoyle, Trump’s daughter-in-law-to-be, says the federal law enforcement officials who retrieved documents from Mar-a-Lago, and who are now prosecuting Trump, “are literally themselves leading an insurrection against this country, trying to do a coup against the president when he was in office and now trying to prevent him from getting in office again.” Even after voters expelled Trump from office, Guilfoyle portrays any threat to him as an attack on America.
THERE SEEMS TO BE NO LIMIT to the unilateral authority Republicans will grant Trump. “The president’s ability to classify and control access to national security information flows from the Constitution,” declared Jim Jordan, the chairman of the House Judiciary Committee, in a CNN interview responding to the indictment. “He alone decides” what to do with such material, said Jordan. “He can put it wherever he wants. He can handle it however he wants. . . . If he wants to store material in a box in a bathroom, if he wants to store it in a box on a stage, he can do that.”
This boundless resolve to defend the former president goes beyond the documents case. Already, some senior Republicans are preparing to attack any prosecution of Trump for his schemes to block the peaceful transfer of power on January 6, 2021. On Wednesday, Sen. Lindsey Graham told CNN: “If the special counsel indicts President Trump in Washington, D.C. for anything related to January 6th, that will be considered a major outrage by Republicans, because you could convict any Republican of anything in Washington, D.C.” On Fox News, Graham added that if Trump were to be indicted in Washington “for January 6th activity . . . that will tear this country apart.”
Graham and other accomplices of the former president aren’t just trying to shield him from prosecution. They’re trying to return him to power. “We have your back,” the senator told Trump on Wednesday, gazing with love and reassurance into the Fox News camera. “You’re going to be president again.”
If there’s anything Trump could do to forfeit the allegiance of his party—any crime he could commit, any dictatorial power he could claim—we haven’t found it yet.
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