The Washington PostDemocracy Dies in Darkness

Opinion Trump again summons the mob

Rioters break into the U.S. Capitol building on Jan. 6, 2021. (John Minchillo/AP)

Richard M. Nixon famously deployed the madman theory of foreign policy, directing aides to suggest to his counterparts overseas that they might not be able to control a volatile and reckless president. Now, Donald Trump and his defenders are using a version of that gambit to deter the Justice Department from prosecuting the former president, arguing that going after Trump would dangerously incite his already angry followers.

Trump had his lawyer deliver this sinister message to Attorney General Merrick Garland — wrapped in a purported effort to calm the waters. “President Trump wants the Attorney General to know that he has been hearing from people all over the country about the raid. If there was one word to describe their mood, it is ‘angry,’ ” a Trump lawyer told a senior Justice Department official three days after the search at Mar-a-Lago. “The heat is building up. The pressure is building up. Whatever I can do to take the heat down, to bring the pressure down, just let us know.”

Then, on Sunday, Trump acolyte Sen. Lindsey O. Graham (R-S.C.) didn’t bother with the disingenuous niceties. He went straight to the threat. “Most Republicans, including me, believe when it comes to Trump, there is no law. It’s all about getting him,” Graham said on Fox News, citing the decision not to prosecute Hillary Clinton for having classified information on her private email servers. “And I’ll say this: If there’s a prosecution of Donald Trump for mishandling classified information after the Clinton debacle … there’ll be riots in the streets.”

The Post's View: Lindsey Graham’s prediction of riots reads more like a threat

Lest you missed his point, Graham said the phrase twice — and then Trump reposted his comments on his social media platform. A retired Air Force lawyer and chairman of the Senate Judiciary Committee, Graham said nothing to convey dismay over the prospect of violence; to the contrary, his clear meaning was that outrage would be justified.

Let’s address that supposed “double standard” between Trump and Hillary Clinton: There isn’t one. Clinton’s use of a private email server while secretary of state was, as I said at the time, sloppy and exasperating. She shouldn’t have used her private email address for official business, and she should have been more careful about classified information being on it. This is, as then-FBI Director James B. Comey concluded, a far cry from an indictable offense.

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Think what you will about the wisdom of Comey’s July 2016 statement that “no reasonable prosecutor would bring such a case.” Comey laid out a convincing distinction between what Clinton did and previous indictments for mishandling classified information, as in the cases of Gen. David H. Petraeus and former national security adviser Samuel R. “Sandy” Berger. Clinton and her aides, he suggested, were “extremely careless in their handling of very sensitive, highly classified information.”

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But, Comey said, “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.”

How does Trump’s conduct fit into this rubric? With so much of the evidence under seal, we can’t tell for sure. But we know, based on the redacted affidavit, that there appear to be significant differences between the Clinton and Trump situations.

In Clinton’s case, Comey said, that “only a very small number of the emails containing classified information bore markings indicating the presence of classified information”; Trump, by contrast, appears to have been fully on notice that he had classified materials whose return authorities were desperately seeking. Investigators found 113 Clinton emails containing information that was classified at the time; more than 300 documents with classified markings have been recovered from Trump. Finally, in Trump’s case, the government had “probable cause to believe that evidence of obstruction will be found” at Mar-a-Lago, according to the affidavit.

Greg Sargent: Lindsey Graham’s vile ‘riots’ threat gives away Trump’s game

Not that those distinctions, if they hold up, will convince anyone in Trump’s camp. Riots in the streets might well ensue if he is criminally charged. Garland shouldn’t let that prospect affect his judgment about the correct course of action. Prosecutors are supposed to be confident of winning conviction before bringing a case, but that doesn’t mean they should be deterred from taking steps that might be unpopular if they believe that prosecution serves the public interest.

The Justice Department’s Principles of Federal Prosecution lay out the considerations: “Where the law and the facts create a sound, prosecutable case,” prosecutors are told, “the likelihood of an acquittal due to unpopularity of some aspect of the prosecution or because of the overwhelming popularity of the defendant or his/her cause is not a factor prohibiting prosecution.”

A sound, prosecutable case. That’s the test — not intimations of mayhem from Trump and his allies only too happy to summon the mob, once again, to his defense.

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