Call me underwhelmed. Donald Trump deserves to be prosecuted for several federal crimes, but withholding classified documents might be the least of his misdeeds. The dramatic FBI search of Mar-a-Largo exposes the Justice Department to charges that it has gone political — pursuing minor charges against Joe Biden’s possible challenger in the next election. At stake is the credibility the DOJ needs to bring Trump to justice for his most serious offenses.
I’ve been among the many Americans hoping — especially since the Jan. 6 summer blockbuster hearings began — that Attorney General Merrick Garland would go hardcore. But after all that has been exposed about Trump’s complicity in the blood and violence of the Capitol insurrection — not to mention the “pay to play” corruption that was the subject of his first impeachment — a documents case seems a bizarre first choice.
Some important caveats: Trump has not been charged with any crime. Authorizing a search warrant is a few steps removed, although it establishes the former president as the subject of a criminal investigation. Prosecution would make sense if the DOJ has credible evidence that Trump was likely to do something nefarious with classified materials, like share them with a hostile foreign power or use them to bribe or curry favor with someone. With Donald Trump, this is sadly plausible.
But the fact is few people get prosecuted for mishandling classified material and even fewer go to jail for it. I understand the national security and historical imperatives of safeguarding the country’s most sensitive information. But, as The Post reports, “Every president has violated the Presidential Records Act in some way.” That’s bad but not as egregious as Trump conspiring with others in a fake-elector scheme to overturn the 2020 presidential election, refusing to order law enforcement to the Capitol when he knew some of his supporters were proclaiming their intent to kill the vice president and the speaker of the House, making U.S. military aid to Ukraine contingent on that country providing dirt on his political opponents, or firing FBI Director James B. Comey after Comey refused to stop investigating Russian interference in the 2016 election.
That’s not just my opinion: Congress sets the sentences for federal offenses to reflect their gravity. Violation of the Presidential Records Act carries no prison time. If Trump deliberately withheld or destroyed classified material, he would be guilty of another offense, with a maximum punishment of three years in prison. In contrast, the serious felonies Trump has exposure for in connection with the Jan. 6 insurrection, including obstruction of an official proceeding and seditious conspiracy, carry up to 20 years of incarceration.
Maybe prosecutors think that, of all the crimes Trump may have committed, concealing classified material is the easiest to prove. But the House Jan. 6 panel has provided a road map for the Justice Department to pursue him for inciting the violence of Insurrection Day and trying to prevent the peaceful transfer of presidential power for the first time in U.S. history.
Of course Trump could be indicted for both mishandling classified documents and for his actions to overturn the 2020 election. But the most prudent exercise of prosecutorial discretion requires the DOJ to focus on its most serious case. Otherwise the feds open themselves up to accusations that they are slinging mud just to see what sticks.
It’s possible that the search warrant was an excuse for FBI agents to search Mar-a-Largo, ostensibly looking for classified government documents but mainly sniffing around for incriminating evidence that pertains to Jan. 6, 2021. The Supreme Court has ruled that such pretextual searches are legal. But, frankly, we have yet to see that level of aggression from Garland with regard to Trump’s role in the insurrection.
In response to the predictable outcry from Trump supporters after the search, progressives have been talking a lot about the rule of law. But no prosecutor charges everyone they think is guilty. An important consideration is whether bringing a case is in the public interest. And our democracy is at a perilous point.
It is legitimate for the Justice Department to consider that, in his run for reelection, Trump received, second only to Joe Biden, the largest number of votes in U.S. history. Trump received 7 million more votes than Barack Obama did in either of his presidential victories. Even if Trump, to use his own example, shot someone on Fifth Avenue, a huge number of Americans would see a criminal case as partisan politics.
This inevitability is not a reason to decline prosecution, but it is a reason for the DOJ to select the charges — and conduct the investigation — with extreme care. The first prosecution of a former U.S. president needs to be worthy of its historic weight.