“You see the mob takes the Fifth. If you’re innocent, why would you take the Fifth Amendment?” Stupid question if you understand the basic principles of the Constitution. But an ironic question if posed by America’s hypocrite-in-chief, Donald Trump, who made the remark in a speech in Council Bluff, Iowa in 2016.
This week, the same man took the Fifth 440 times in a deposition at the office of New York Attorney General Letitia James. In a civil case, her office is investigating the Trump Organization’s business practices. The question at hand: did Donald Trump manipulate his business finances fraudulently to avoid paying taxes on his assets? (Too bad that Manhattan District Attorney Alvin Bragg, Jr. balked at pursuing criminal charges in similar Trump financial shenanigans!)
It’s been a busy week for the former President, now the target of at least 19 pending legal cases. Seven concern his role in the January 6 insurrection; six have to do with financial transgressions; two, his interference in the 2020 election (including the criminal case against him for pressuring state officials in Georgia); one outstanding sexual assault suit; and three other private actions.
The FBI’s exercise of a search warrant at Mar-A-Lago, Trump’s private club and primary residence, to recover missing government materials has grabbed all the recent headlines. The 1978 Presidential Records Act, requires presidents to turn over documents to the National Archives at the end of their administration. Earlier this year
The National Archives and Justice Department demanded Trump return allegedly sensitive information improperly removed. After an initial tranche was recovered, negotiations with Trump’s legal team for additional missing items were fruitless. Even a subpoena had not produced the lawfully sought materials. Hence, the search warrant and this week’s visit.
Republicans are crying prosecutorial misconduct and abuse of power. But legal experts maintain the Department of Justice would not have embarked upon such a tactic and most assuredly could not get a judge to issue a warrant for the search were there not powerful evidence of criminality. Trump continues to whine about the lax government oversight of record handling of Hillary Clinton and Barack Obama. But his charges about Obama are baseless and this matter is clearly distinguishable from the Clinton email scandal of 2016 .
David Laufman, who led the Justice Department’s counterintelligence section investigation of both Clinton and Gen. David Petraeus, told Politico: “For the department to pursue a search warrant at Mar-a-Lago tells me that the quantum and quality of the evidence they were reciting — in a search warrant and affidavit that an FBI agent swore to — was likely so pulverizing in its force as to eviscerate any notion that the search warrant and this investigation is politically motivated.”
Trump may have hoisted himself on his own petard. In 2018, as part of his vendetta to nail Hillary Clinton for her mishandling of potentially classified emails, then-President Trump signed legislation making such mishandling of government material a felony, punishable by one to five years of incarceration. If Trump were to be convicted, he would forfeit the right to run for federal office.
Trump’s supporters in Congress and would be GOP rivals have been demanding that the justice department disclose details about the warrant, which they claim was unjustified. Trump himself has had ample opportunity to release the FBI warrant to demonstrate the FBI’s case as baseless, but he has not done so. Now Attorney General Merrick Garland, citing “substantial” public interest in the matter of the recovery effort, (ginned by Trump himself,) has called the former President’s bluff and asked the Judge to unseal the contents of the warrant. Trump has until this afternoon to release the details himself, acquiesce, or legally fight the release.
Speculation is rife that what the FBI was looking for goes well beyond evidence of simple violations of the Presidential Records Act. The Washington Post reports that some classified documents included top-secret nuclear weapons information. Others hypothesize the target is secret communications between Trump and heads of foreign governments; still others wonder aloud about Trump chicanery to monetize his possession of the documents. Some may be dismissed as just speculation. But, having watched outrageous Trump behavior for at least six or seven years, can anything be ruled out?
Given the dual roles of many Trump appointees and acolytes, some of the sought materials may be directly related to the January 6 investigation. The bipartisan committee investigating the roots of the insurrection will be back in September. Still unclear is will the Committee refer anyone to the DOJ for prosecution, or whether the DOJ will act on its own.
It could take time for these legal processes to play out, and the clock is ticking. If the Republicans take over the House, the January 6th Committee will probably be trashed. GOP investigations of the Biden administration could hobble Department of Justice activities. Concerns are similarly real about whether the Supreme Court would likely deal a death blow to lower courts’ approval of the Congressional subpoena of Trump’s tax records.
A federal appeals court in Washington ruled unanimously Tuesday that the House Ways and Means Committee can now obtain several years of Trump’s tax returns, a victory for Chairman Richie Neal in his years-long battle to obtain the records. Trump’s legal team, however, will likely appeal the ruling either to the full D.C. Circuit or the Supreme Court. If just four SCOTUS Justices decide to review the Appeals Court ruling, they could delay a decision until next year. Even if the Supreme Court eventually sided with the Ways and Means Committee request, a Republican-controlled Congress could bury the information.
We can’t depend on the justice system to take Trump down in a timely way. There’s no substitute for hard work in the electoral process. Obsession with these catnippy mid-August intrigues shouldn’t distract us from the overriding importance of mid-term races at state and national levels.