Trying Trump: Scandal May Be His Element — But This Time May Be Different

Below is the column in the Messenger on the Trump indictment. As expected, Trump is already campaigning on the issue. In a rally in Georgia, Trump declared: “They’ve launched one witch hunt after another to try and stop our movement, to thwart the will of the American people. In the end, they’re not coming after me. They’re coming after you.” Trump may not be the first president to be arrested, but his case is already unprecedented. It could get even more wild in the months to come.

Here is the column:

“I will have to place you under arrest.” Those words to an American president have only been uttered once in history. And, no, it was not a line uttered at Mar-a-Lago. Those were the words of William Henry West, a Civil War-era African American soldier and later a police officer, when he arrested Ulysses S. Grant for speeding in a horse-drawn carriage on the streets of Washington, D.C. in 1872.

Grant had been warned previously about his speeding and, according to West, looked like “a schoolboy who had been caught in a guilty act by his teacher.”

Unlike Donald Trump, Grant did not proclaim, “I am an innocent man!” But, then again, he was not looking at charges that could bring as much as 20 years in prison. (Grant paid a $20 fine).

West and President Grant became friends. That also is not likely to occur between Trump and the Department of Justice (DOJ) special counsel, Jack Smith, who Trump has called a “rabid wolf.”

Many are celebrating what the Drudge Report suggested was “the downfall of the Don.” However, destroying Trump in a scandal is like trying to drown a manatee: Both are in their element.

The fact is that many people will see this indictment as confirmation of their worst expectations of either Trump or the Justice Department.

It will be difficult to get through a trial before the 2024 presidential election. Even if the Justice Department pushed for a trial, judges likely would balk at the notion of trying this case months before the election. Either way, Trump — if he won reelection to the White House — could give himself a pardon before or after any conviction.

How the Justice Department proceeds from this point will either confirm or rebut allegations of political bias.

One of the open questions will be the other part of Smith’s mandate. He was asked to look into criminal charges related to both the Jan. 6, 2021, riot in the Capitol and the classified documents which Trump allegedly held at his Mar-a-Lago home. Smith made fast work of the Mar-a-Lago part, but there is no indication of what is occurring on the other matter.

If Smith has found that there is no basis for criminal charges over Trump’s role on Jan. 6, it would be the final rejection of claims by the House of Representatives’ Jan. 6th Committee and by a host of politicians and pundits. The question is whether Smith will be as quick to resolve that question as he has been in alleging the crimes at Mar-a-Lago.

Regarding Mar-a-Lago, the reported inclusion of a charge under the Espionage Act is a bit surprising, given the novel legal issues surrounding the handling of such documents. However, the inclusion of false-statement and obstruction charges is what many of us have predicted all along. These are the favorite charges of federal prosecutors; they are easier to prove and can be presented as stand-alone offenses.

When Grant was arrested, he did not contest the charge. Either he was speeding or he was not. But these charges against Trump can have the same cut-and-dried look for jurors: Either a statement was true or it was not. While there will be a question of whether Trump or his lawyers were responsible for false representations to federal authorities about the alleged documents, the question for the jury is free from the factual and constitutional complexities suggested by his team.

Those charges will become even more challenging for Trump if, as rumored, Smith has secured the cooperation of individuals within the Trump team. Earlier, Smith reportedly compelled the appearance of Trump lawyers before the grand jury. There is also a leak suggesting that Smith has an audiotape of Trump referring to his possession of a classified document on Iran — and acknowledging that he could not show or discuss the contents.

For two years, I have said that the Mar-a-Lago charges — particularly obstruction — represent the greatest threat to Donald Trump. It remains baffling why Trump forced this issue over these documents rather than just give them all back. (He could still have gotten access to them from the National Archives.) He knew that he was unlikely to receive much deference from the DOJ. Yet, he allowed this collateral controversy to consume his campaign.

Once again, however, the campaign is all about Trump. Moreover, there could be a method to the madness, as Trump seeks to try this case before the public.

Indeed, the ultimate jury in this case could prove to be the American people. The 2024 election could become a referendum on this case. I have long maintained that presidents can pardon themselves, and Trump could well use his mugshot as a campaign poster.

One of the early issues for the court in Florida will be whether to gag the former president from campaigning on this matter. That could raise serious free-speech concerns and could prove one of the early appellate issues in the case if the court imposes strict limits on what Trump can say about it.

Trump, based on past behavior, is likely to invite rather than avoid such fights.

The Justice Department has done tremendous damage to itself — and, potentially, to this case — due to its prior history with Trump. FBI and Justice officials have shown open bias against him and have treated him differently than figures like former Secretary of State Hillary Clinton. That record was further exposed recently by another special counsel, John Durham, who found that the Justice Department lacked a basis to launch the Russia-collusion investigation.

Polls show that the majority of Americans harbor serious doubts about the independence and integrity of the FBI. Many voters are skeptical over yet another criminal allegation just before a presidential election.

Trump is now facing the most serious criminal charges in his career. If successful and Trump is not pardoned by himself or one of his Republican competitors (or even by a magnanimous Joe Biden), it could be a lethal threat. At 76 years old, Trump would be unlikely to survive a prison stint even without the imposition of the maximum sentences allowed under these charges.

He will surrender on Tuesday — but that will be only the start of an existential fight for Trump.

Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.

217 thoughts on “Trying Trump: Scandal May Be His Element — But This Time May Be Different”

  1. Special Counsel Jack “Mike Nifong” Smith

    “Malicious Prosecution”

    Mike Nifong

    Known for:

    Misconduct against falsely accused players in the Duke lacrosse case.

    Michael Byron Nifong (born September 14, 1950) is an American former attorney and convicted criminal.[2] He served as the district attorney for Durham County, North Carolina until he was removed, disbarred, and very briefly jailed following court findings concerning his conduct in the Duke lacrosse case, primarily his conspiring with the DNA lab director to withhold exculpatory DNA evidence that could have acquitted the defendants.[3]

    On September 7, 2007, after having already been disbarred, Nifong reported to the Durham County jail to serve a one-day jail sentence for contempt of court. He was held alone in a cell for his protection.[88]

  2. The President has the sole power in this matter. That is our Representative Republic. That’s how we have “a democracy” all the criminals crow about constantly.
    I guess all the deep state lackeys will convince all the morons in our country to throw away their power with their orange man bad hatred.
    Give it all up to the corrupt deep state criminals while every single other president has the same thing in their sock drawer, garage, an abandoned storage locker, or in the hands of foreigners while they get bank through a hundred LLCs maze.
    The poison tree is the entire cake here, it’s all a fraud and a crime, and Trump is 100% innocent by default, period.
    The entire case is corrupt from top to bottom.

    1. Trump took military secrets, was asked many times to return them, lied, refused, and showed them to people without a security clearance. It’s clear your thought process is: what I like is the truth, what I don’t like is false. Our educational system has failed you. Sorry.

  3. Trump should never have been charged. It was clear corruption.

    Surprisingly, Professpr Turley and no one has noted 44 USC 2205.

    This part of the Presidential Records Act creates SPECIFIC EXEMPTION from RESTRICTIONS for a former President and guarantees UNLIMITED ACCESS to the former President for ALL records. (“shall” is used and there is no wording anywhere in the PRA statute which limits the former President.). Further, no where in the US Code is there a statute which assigns a lesser priority to the PRA.
    It is true that the PRA says ownership of the documents is with the government by means of the Archives, but that doesn’t mean the Archives are entitled to possession of the documents except in the long term when the former President doesn’t want to exercise his right to access.
    There is precedential use of possession without custody in leases, and in child visitation .

  4. A sleazy microcosm of the DOJ investigation into Trump is the fact it was able to override attorney-client privilege.

  5. Let’s see…

    The National Archives refused to assist Trump with his documents, and refused to prepare a temporary library for him. Unlike for previous presidents.

    Instead, unknown persons in the General Services Administration scooped up what were Trump’s personal papers and mementos, along with “presidential papers and records”, dumped them into a bunch of boxes, and dropped those boxes onto the White House parking lot where they sat until guys with a truck coud load them up and transport them to Mar-a-Lago. In other words: here, Trump, you deal with them.(Did the truck drivers have classified clearance? Just asking.)

    Then, in connection with the tens of thousands of pages in dozens of boxes… was Trump — personally? — supposed to go sorting through these? And when, where and how. And then what. (Can you tell what is in boxes by looking at the boxes?)

    Bear in mind that these boxes also contained Trump’s personal private property. Would you just turn your PERSONAL property over lah-ti-dah to the same activist a-holes at NARA who had just refused to assist you with sorting, packing, storing, and transporting?

    And then the concocted illegal raid on Mar-a-Lago with the witting posturing help of the useful tools at NARA. Mostly to divest Trump of evidence in his case filed last year, Trump v. Clinton et al. When the issue of the illegal search and seizure was raised in court, court said “no remedy” because the remedy is only that the “evidence” — and fruit of the poisonous tree — can’t be used in a criminal case, and last year, no criminal case was pending. Well, now there is, and the entire thing requires dismissal.

    The FIBs rifled through Melania’s and Barron’s underwear drawers and closets, Trump’s own office and desk. Of the thousands of documents they grabbed, including his personal news clippings, birthday cards sent to him, and stuff like his passport (has his property been returned?), now, from all of those boxes and tens of thousands of pieces of paper, they have found… 31 (orwould that be 32) “documents” allegedly violating some or other law that does not apply to the President of the United States.

    Why is this not being addressed from the correct standpoint that it is an atrocity — not something for legally scholarly media contemplation and rumination.


    Article II, Section 1

    The executive Power shall be vested in a President of the United States of America.

    The President alone wields the executive branch power of classification, declassification and archiving of materials.

    The legislative branch has no legal basis to usurp any aspect, facet or degree of the power of the executive branch.

    No legislation usurping the power of the executive branch is constitutional.

    No legislation usurping the power of the executive branch to classify, declassify and archive material is constitutional.

  7. Trump’s former Attorney General Bill Barr:
    “I think the counts under the Espionage Act — that he willfully retained those documents — are solid counts … If even half of it is true, then he’s toast. It’s a very detailed indictment, and it’s very, very damning.”

    1. It’s funny how you hated Bill Barr when you (mistakenly) believed he supported Trump. But now that’s he come out in the open about his hatred for Trump, you love him. But I can appreciate your assessement of Barr. What’s the point of having double-standards if you can’t express them?

      1. Liar. I have no love for Bill Barr. He was an awful AG. And he doesn’t hate Trump. I believe he’s said that he’d vote for him again.

        1. Now, now. Please resist the temptation to demostrate your incivility. Methinks the lady doth protest too much.

    2. William “Mr. Deep Deep State Swamp” Barr…

      Great American Traitor…

      Vile, Posturing, Lying, Low Life, Backstabbing, Execrable, Rotund, Charlatan and Quisling.

      Whatever would the current state of affairs be if either of Real President Donald J. Trump’s Attorney Generals had been loyal and dedicated to the literal Constitution?

      William “Mr. Deep Deep State Swamp” Barr is nothing more than a rancid product of the appropriated, co-opted and corrupted process of Advice and Consent.

      It’s the Bolsheviks in Moscow, 1917, immediately preceding the heinous slaughter of the Romanovs in 1918.

      God Bless America.

    3. Dear Anonymous.. You and Bill Barr sure love putting out into that would make for a mistrial

    4. William “Mr. Deep Deep State Swamp” Barr was sent out, as the dutiful soldier he is, and as “Fat Man,” the atomic bomb deployed to destroy all opposition, to support that which is unsupportable and that which is legally and politically absurd.

  8. It is only right under our esteemed two-tiered system of justice that individuals who don’t hold Deep State approved political viewpoints, such as Donald Trump, should continue to be prosecuted in multiple cases based on manufactured evidence. Otherwise, what’s the point of even having a two-tiered system of justice?

  9. Journalist Michael Kelly called Clinton’s effort to apologize a “profound blasphemy.”
    Why? Because he was lying. He knew about the slaughter as it was taking place and he he didn’t. Trump, raise the issue of clinton’s culpability for the Rwandan Holocaust.

    1. Dr. Peter Breggin, M.D.? If so, it is a huge honor to have you on this comment board. 🙂

  10. the USA has NEVER been more lawless!
    Even the Civil War was more lawful! Democrats 100% USE government for their politics! Time to CUT 50% of Federal government and the aid it provides

    TAKE AWAY Democrats MONEY!

  11. Trump was discovering to a “defiant outlaw” image on his CNN Town Hall. It sold with a portion of that TV audience, although based on a few audience shots, not all were amused.

    I think he’ll continue losing support the more he middle-fingers federal law enforcement. He’s grown as pathetic a victim as progressives….any criticism of his schtick, however even-handed, makes you his mortal enemy. He’s painted himself into a corner, by ignoring the advice of lawyers. He suffers from know-it-all bull$hi#ery syndrome (KIABSS).

  12. Mitt Romney on the indictment of former President Trump:

    “Like all Americans, Mr. Trump is entitled to the presumption of innocence. The government has the burden of proving its charges beyond a reasonable doubt and securing a unanimous verdict by a South Florida jury.

    “By all appearances, the Justice Department and special counsel have exercised due care, affording Mr. Trump the time and opportunity to avoid charges that would not generally have been afforded to others.

    “Mr. Trump brought these charges upon himself by not only taking classified documents, but by refusing to simply return them when given numerous opportunities to do so.

    “These allegations are serious and if proven, would be consistent with his other actions offensive to the national interest, such as withholding defensive weapons from Ukraine for political reasons and failing to defend the Capitol from violent attack and insurrection.”

    1. It’s not so much I object to charging Trump with taking ‘classified documents’ – I would need to see them, of course, otherwise it’s just boxes of paper. Barr says they are ‘sensitive’, and I’m sure more details will leak out so the Jury can make an informed judgment.

      It’s that they are so selective in such a target-rich environment. Who hasn’t taken classified documents? And, I’m sorry, Joe Biden’s corvette does not qualify as a SCIF, especially if Hunter is driving.

      *bah humbug

      1. Biden cooperated with the searches. Trump did not. Trump obstructed.

        The indictment states what the classification markings were for each of the 31 documents where he’s charged with willful retention of national defense information.

        And Biden will not be indicted while he’s in office for the same reason that Trump was not indicted while he was in office: the OLC memo saying that a sitting President cannot be indicted. So you’ll have to wait til Biden is out of office.

        1. Well, The OLC ain’t God. .. I don’t care what they say.

          Biden should be impeached. Immediately, before they kill us all.

          *I thought they should have impeached Biden during Trump’s 1st impeachment.

          1. It doesn’t matter whether you care what the OLC says. The DOJ cares what the OLC says.

            Nothing is stopping the House Republicans from impeaching Biden. They apparently don’t want to.

            1. It matters to me. The DoJ may have confidence in OLC memos .. . but they’re not chiseled in stone.

              *we’re not having much luck with impeachments lately, by either party . .. professional curtesy, I guess.

              1. The Dems impeached Trump twice. It’s the removal that they failed with, not the impeachment.

        2. I think therein lies the rub. The ineptitude of Clinton and her server are inexplicable. But you do give the government an out with ineptitude in terms of not charging. Trump showed such contempt for the law here that I don’t really know what a prosecutor can do other than what this one did.

          You really have to have a couple of screws loose to get yourself in this kind of predicament.

          I wonder if an insanity defense might work.

        3. Biden can be impeached, for his unlawful retention of documents for decades and for bribery. The Republicans in the House should commence impeachment proceedings immediately.

          1. the GOP was never going to impeach Biden and his entire cabinet as many of us predicted before they narrowly won the majority. Face it: Democrats are driven with madness to destroy and conquer, while GOP are driven to the shadows when they have the majority. They make eunuchs look well endowed. Heck, Majorie Taylor Greene has a bigger pair of ovaries than the Speaker’s testicles, assuming he is not a FTM trans. Sorry, not sorry

            The Republicans are a fraction of what Ronald Reagan was in the 1980s.

        4. Biden mishandled classified documents since 1984, and HE HAD NO RIGHT to have them in the first place.

        5. Biden needed his Office and at the Penn, Biden Center. Paid for by the Chinese.
          To clean out the office, Biden sent a team of lawyers to pack up. Because lawyers do moving jobs when they need to make their rent.
          After the lawyers, “cleaned” they gave the FBI the photo opportunity to create the narrative of cooperation.
          Of Course Biden never had the power to poses any of these documents.
          And, since the office wasnt built when Biden left office, those boxes had to be moved out of the White House, and then moved again to the Penn Biden Center. All the while, Biden never had the power to posses classified documents.

        6. again, Mr. or Ms. Anonymous.. ‘Biden cooperated’ with his own lawyers doing the searches… how does that even compare to the FBI doing searches …?

          1. Trump has guaranteed unlimited access to all documents under 44 USC 2205.
            If Trump has a guaranteed right to unlimited access to the documents, all crimes crash.
            There can thus be NO obstruction and NO classified document violations.

            In fact, under the statute a former President can DESIGNATE someone else to review the documents. That KILLS that and the espionage statute.

            The only pathway to a charge or a conviction is by corruption, which is exactly what has happened..

    2. Let’s look at two points in Romney’s comment: 1) withholding weapons from Ukraine; and 2) failing to defend the Capital on January 6.
      1. Preliminarily, it is important to note that there was no deadline for giving aid to Ukraine, except for the obligation to notify Congress that Trump was impounding funds, a deadline that had not yet arrived at the time of the telephone call with Zelensky. In that conversation, it appears that Trump asked him to investigate whether the “Crowd Strike server” was in the possession of someone in Ukraine. This request is presumably based on the theory that Hillary Clinton’s illegal server was hacked by someone in the Ukraine rather than by someone in Russia. Ibid. It may be recalled that Democrats alleged for months, and in some places still maintain, that the illegal server had been hacked by Russia in order to hurt Clinton and help Trump in 2016. Why was this not an important historical and policy question? If the Russia-Trump collusion theory was a hoax (as it was), then someone was responsible for “misinformation” on a grand scale; and it is supposed to be a goal of our federal government to battle against misinformation. Trump may also have suspected that giving military aid to Ukraine, against Russian-supported troops, would lead us to war, as it has. Unlike Romney, Trump was not a neo-con.
      2. On January 2, 2021, Trump offered National Guard troops to the Capitol Police to protect the electoral vote-counting ceremony. documentsingle.aspx?DocumentID=102V. The offer was rejected. Ibid. A strange way of “failing to defend the Capitol”.

      1. Ultimately Trump did give military aid to Ukraine. In fact, the Republicans touted how much more he’d given militarily than Obama did.

        Trump waited for hours on J6 before he even asked his supporters to leave the Capitol.

        1. Trump waited for hours on J6 before he even asked his supporters

          What crime is that?

          Pelosi and Bowser refused Trumps suggestion to increase the National Guard presence. Those are the ones that refused to protect the Capitol
          Of course there are half dozen or more govt agencies, seeding the Jan 6 crowd with agents promoting violence.

  13. Bug, you wrote: “He was a senator was chair of U.S. foreign relations committee. The judicial committee. Both require top secret clearance. He was also Vice President. He had a right to those documents.”

    Bug, this shows how little you know. He had no right to take them home or to China Town. He didn’t cooperate with authorities. The authorities cooperated with him despite the fact the documents were kept hidden and transferred multiple times.

    You lack the knowledge and the intellect to figure out what actually happened. You are, however, good for a laugh. Your response will disappear as it should, while this response will remain.

    1. After a long discussion that was deleted because Bug’s responses are deleted another response came in that said: “Btw. This is not bug.” That one was deleted as well. Bug has developed a split personality along with his other psychosis.

  14. The train derailment in Arizona was likely caused by Russian saboteurs. The FBI should comb the area for empty vodka bottles.

    1. Apart from analytic integrity, in seeking FISA authority in Crossfire Hurricane,
      investigators withheld key pieces of information from the OI attorneys. The OI attorneys are
      responsible for ensuring the accuracy and fairness of the information presented to the FISC, an
      impossible task without being provided with relevant information.

      John Durham Report

  15. Do you honestly think “Either a statement was true or it was not?” What about different perceptions and/or interpretations? What about the state of mind of the speaker? Ambiguous word choices? False statements are not as cut and dried as you make out.

    1. Instead, the FBI immediately opened a
      full investigation, an investigation that clearly had the ability to affect an approaching
      presidential election. Indeed, executive management of the FBI and its Counterintelligence
      Division appear to have taken the Paragraph Five information at face value in opening the matter
      as evidenced by the Opening EC citing the Paragraph Five information as essentially the sole
      basis for opening a full investigation on unnamed members of an ongoing presidential campaign.
      Then, when the Steele reporting finally was received by Crossfire Hurricane personnel in
      September 2016, it was immediately exploited, with no verification of its sensational allegations,
      and used in support of its initial request for FISA authority. The Steele reporting would
      eventually fall apart, but not before it had been continuously adopted by the FBI as supportive of
      its underlying theory regarding collusion.
      John Durham Report on Matters related to Intelligence Activities

  16. REP. TREY GOWDY: Good morning Director Comey. Secretary Clinton said she never sent or received any classified information over her private email. Was that true?
    JAMES COMEY: Our investigation found that there was classified information sent —
    GOWDY: So it was not true?
    COMEY: That’s what I said.
    GOWDY: Okay, well I’m looking for a little shorter answer so you and I are not here quite as long. Secretary Clinton said there was nothing marked classified on her emails either sent or received. Was that true?
    COMEY: That’s not true. There were a small number of portion markings on, I think, three of the documents.
    GOWDY: Secretary Clinton said I did not email any classified material to anyone on my email, there is no classified material. Was that true?
    COMEY: There was classified material emailed.
    GOWDY: Secretary Clinton said she used just one device. Was that true?
    COMEY: She used multiple devices during the four years of her term of secretary of state.
    GOWDY: Secretary Clinton said all work related emails were returned to the State Department. Was that true?
    COMEY: No, we found work related emails, thousands, that were not returned.

    1. Bill apologized for not acting sooner. He was waiting anxiously for word. He never acted at all. 800,000 innocent human beings were butchered, hacked to death with pick-axes, because Bill refused to ask the U.N. to send in peacekeepers.

      The violent Left-wing does not care.

    2. Also Comey, July 5: “Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.
      “In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”

      By way of contrast, with Trump there is clearly intentional and willful mishandling of classified information and efforts to obstruct justice.

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