Discover more from The Bulwark
Trump's Incoherent Word Salad
Plus: Merrick's slow walk
“Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?” —Words that Donald Trump has apparently never heard.
Well, I hope you’re having a better day than Trump’s lawyers.
The former president sat down with Fox’s Bret Baier and it didn’t go well. Baier, as you know, has been going through a few things recently, but came focused and prepared, while Trump apparently forgot he is facing multiple felony indictments. You can be sure that special counsel Jack Smith was listening and taking notes.
ICYMI: Tim Miller and Tom Nichols gave their live reactions to the interview last night:
How did it go?
Bradley Moss, a national security attorney, told Newsweek:
"Mr. Trump's lawyers had to be cringing during that interview, and DOJ lawyers were no doubt taking notes. Mr. Trump confessed to personally going through the boxes and had no explanation for why classified records from those boxes wound up in his personal desk. He placed himself at the scene of the retention and obstruction. This is the stuff of nightmares for a defense attorney."
Conservative talk show host Erick Erickson tweeted:
“His answers on the matters of the law seem to me to verge on incoherent,” he said. “He seemed to be saying that the documents were really his and that he didn’t give them back when he was requested to do when they were subpoenaed because, you know, he wasn’t ready to because he sorted them and separated the classified information or whatever from his golf shirts or whatever he was saying. It was not altogether clear what he was saying.”
“Before I send boxes over,” Trump told host Bret Baier, “I have to take all of my things out. These boxes were interspersed with all sorts of things.”
“I was very busy, as you’ve sort of seen,” he explained.
The comments from Trump are an admission that he did not move to satisfy the federal government’s demands that he comply with their requests to hand over the documents. It is also the fullest he has addressed the matter since being indicted for his mishandling of those documents, which allegedly included classified material.
On the tape, Trump makes it clear that he understands he shouldn't be showing the Iran war planning document and that it was secret.
"When I said that I couldn't declassify it now, that's because I wasn't president I never made any bones about that," said Trump. 'When I'm not president, I can't declassify."
The admission is like a problem for Trump's legal team because it clarifies that he understands the law.
Mehdi Hasan asked former US Attorney Harry Litman if special counsel Jack Smith was watching interviews like these, "with popcorn."
"One-hundred percent he is, and it's totally bogus because, of course, Trump's claim was he already had declassified it in his mind just by taking it. So this is one more inculpatory statement. Every time he opens his mouth, it gets worse."
Criminal defendants usually avoid speaking publicly about details of any charges in their case, for fear of their remarks being used against them. The interview was broadcast on the same day that a federal magistrate judge in Mr. Trump’s case issued a protective order instructing him not to reveal any evidence that had been turned over to his legal team as part of the discovery process.
While the interview did not seem to violate that order, his remarks represented some of his most expansive comments about the nearly two years that federal officials spent trying to retrieve material from his presidency that belongs to the government. The comments were also the latest in a string of shifting stories that he and his allies have offered since it became public that officials at the National Archives and Records Administration recovered 15 boxes of material from Mr. Trump in January 2022.
Bonus. If you haven’t seen this clip of Baier listing all the former Trump allies and aides who have broken with the former president, do yourself a favor and watch. As of this morning, it had more than 4.5 million views.
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Merrick’s slow walk
By now, you’ve probably heard about this Wapo exposé: “FBI resisted opening probe into Trump’s role in Jan. 6 for more than a year.”
It’s really one oof after another.
A Washington Post investigation found that more than a year would pass before prosecutors and FBI agents jointly embarked on a formal probe of actions directed from the White House to try to steal the election. Even then, the FBI stopped short of identifying the former president as a focus of that investigation.
A wariness about appearing partisan, institutional caution, and clashes over how much evidence was sufficient to investigate the actions of Trump and those around him all contributed to the slow pace.
Garland and the deputy attorney general, Lisa Monaco, charted a cautious course aimed at restoring public trust in the department while some prosecutors below them chafed, feeling top officials were shying away from looking at evidence of potential crimes by Trump and those close to him, The Post found.
The delays in examining that question began before Garland was even confirmed. Sherwin, senior Justice Department officials and Paul Abbate, the top deputy to FBI Director Christopher A. Wray, quashed a plan by prosecutors in the U.S. attorney’s office to directly investigate Trump associates for any links to the riot, deeming it premature, according to five individuals familiar with the decision. Instead, they insisted on a methodical approach — focusing first on rioters and going up the ladder.
The strategy was embraced by Garland, Monaco and Wray. They remained committed to it even as evidence emerged of an organized, weeks-long effort by Trump and his advisers before Jan. 6 to pressure state leaders, Justice officials and Vice President Mike Pence to block the certification of Biden’s victory.
In the weeks before Jan. 6, Trump supporters boasted publicly that they had submitted fake electors on his behalf, but the Justice Department declined to investigate the matter in February 2021, The Post found. The department did not actively probe the effort for nearly a year, and the FBI did not open an investigation of the electors scheme until April 2022, about 15 months after the attack.
The Justice Department’s painstaking approach to investigating Trump can be traced to Garland’s desire to turn the page from missteps, bruising attacks and allegations of partisanship in the department’s recent investigations of both Russia’s interference in the 2016 presidential election and Hillary Clinton’s use of a private email server.
Inside Justice, however, some lawyers have complained that the attorney general’s determination to steer clear of any claims of political motive has chilled efforts to investigate the former president. “You couldn’t use the T word,” said one former Justice official briefed on prosecutors’ discussions.
Four quick takes:
The story of the FBI/DOJ slow walk of the probe debunks the GOP claim that the Department of Justice has been “weaponized,” to persecute Trump.
Garland’s failure to move decisively is disappointing, because it suggests that he was self-deterred from aggressively investigating Trump’s role in the attack on Congress and his concerted attempts to steal the election.
While more indictments may be on the way from Jack Smith, the delay could push any trial past the 2024 election.
The J6 Committee’s work — and the pressure it put on DOJ to pursue the case — was even more important than we thought.
Welcome to the Resistance, Bill Barr
Former AG Barr protected Trump while he obstructed justice, but he’s now joined the anti-Trump coalition. Plus, Tim Scott tests out being a hack, Pence lacks self-awareness, and Merrick Garland’s delay. Will Saletan joined me on Monday’s Bulwark podcast.
1. It's Not the Law’s Fault that Trump Broke It
In defending the former president, his allies and apologists are—as usual—hurling spaghetti at the wall to see what sticks. One of the spaghetti strands is an attack on the espionage statute itself. A revealing instance is an article published in the Free Press by Eli Lake, a writer for the conservative New York Sun.
Lake occupies the curious position of being a Never Never Trumper. On the one hand, he is a scathing critic of Trump—he recently called him unfit for the presidency, “a demented narcissist, a con man and a liar.” On the other hand, he recurrently comes to Trump’s defense: He condemns the FBI for supposedly “railroading” Trump’s first national security advisor, General Michael Flynn; he regularly echoes Trump’s claim that he has been the “victim of abusive investigations”; and he mocks Trump’s critics, whom he sneeringly calls the anti-Trump “resistance.” In short, his stance is to wish a plague on both houses: Trump and Trump’s critics alike.
Lake’s argument about the Espionage Act, in a piece titled “Trump Probably Broke the Law. But That Law Shouldn’t Exist”…
2. National Opinion Polls Don’t Matter. Swing State Opinion Polls Do.
Barring something truly bizarre, Biden will win again if he wins the “blue wall” states of Pennsylvania, Michigan, and Wisconsin in 2024. Those states together have 46 electoral votes. With those three states, plus every reliably Democratic state in his column, Biden needs just one addition Electoral College vote to reach the magic, winning sum of 270. He could clinch it by taking Nebraska’s 2nd Congressional District or Maine’s 2nd Congressional District—those states’ electoral votes are awarded a-la-carte by district rather than on a winner-take-all basis for the whole state—or by winning any one of the other swing states.
While Trump narrowly beat Hillary Clinton in Pennsylvania, Michigan, and Wisconsin in 2016 and won, Biden flipped them fairly easily in 2020. Biden could have lost Georgia, Arizona, and Nevada and still have accumulated enough Electoral College votes to beat Trump. And all three “blue wall” states voted overwhelmingly for Democrats in the 2022 midterms.
The current polls show Biden up by an average of 3.4 percent in those three Midwest states (based on an aggregation of 24 individual states polls, all done before the latest indictment). That tells a very different story from the RealClearPolitics average of national polls, which has Trump up by two points.
3. GOP Rivals’ Merch Stores Are Open
Under the law, buying merchandise from federal candidates is the same as donating money to their campaigns. The Federal Election Commission website notes that “the entire amount paid to . . . purchase a fundraising item sold by a political committee is a contribution and counts against the individual’s contribution limit.” In other words, someone who gives former President Donald Trump the $3,300 per-election maximum and then buys a $45 cap from his campaign is breaking the law. (If caught, of course, they can cry bloody murder about the weaponization of the federal government.)
Here’s a rundown of the merch being offered by the campaigns of declared contenders. Each link reflects the name of the candidate’s actual store page. Merch counts were tallied on June 19.