Garland’s No-Win Decision

Garland’s No-Win Decision


Leonard Zwelling

The final outcome of the Trump/Mar-A-Lago document fiasco has yet to be played out, but we do know a few things for sure.

First, Mr. Trump did move a lot of official, U.S. government paper to Mar-A-Lago after his presidency was over. This may, in and of itself, constitute a felony. That some of the papers appear to have been top secret is not really of relevance to the Justice Department’s case. Trump having the documents in his private residence in Florida may constitute a serious offense on its own. His resistance to turn all of the documents over to the National Archives compounds his problem.

Second, the National Archives made a good faith effort to retrieve the documents for over a year without full success and obviously without Mr. Trump’s complete cooperation. If that were not the case, there would have been nothing to find during the August raid, but apparently there was.

Third, despite what the Republican media wants to say, this is not political. Mr. Trump should never have taken these documents. They are not his to take. He may see it otherwise and that may mean he did not have mens rea to prosecute a crime. To be determined.

Fourth, this does not in any way justify the fact that Hillary Clinton was not prosecuted for also being sloppy with documents, servers, and email accounts (see WSJ op-ed).  I thought that she should have been prosecuted and that her behavior disqualified her on its face for high public service despite her eminent qualifications and I said this on a call-in radio program out of New York City in 2016. That many Republicans are claiming that there is a double standard here is not at all wrong. She appeared to be guilty. He appears to be guilty.

That all being said, that is not the hard part for Attorney General Merrick Garland. The hard part is determining whether or not the cost of prosecuting a former President of the United States under what may be espionage laws and obstruction statutes is a good idea.

I honestly don’t know.

Not prosecuting can be justified if the evidence does not support an indictment or the case is insufficiently strong to bring into a court room. That seems unlikely. Trump was caught red-handed with documents he should not have had at Mar-A-Lago and he had them over a year after leaving the White House and two months after turning over other sought paper. It has to be intentional that he had these documents given that he had more than enough time to return them once the Archives sought them. I have no idea why he bothered keeping them, but Trump is certainly known for shooting himself in the foot in the sphere of public discourse, so he may just be stubborn or really believe that these papers were his. (Thus, did he have a guilty mind?) I have no idea why he would think the latter, but that may well be for a grand jury or trial jury to determine.

However, not prosecuting the former President if he really held the documents against the law and on purpose is an even bigger error because it basically sets the precedent that the President is above the law. This would constitute a green light for future Presidents to do all kinds of shenanigans both during and after their time in office.

There is also one further complication. It appears almost certain now that both Mr. Trump and Mr. Biden will seek the Presidency in 2024 (God help us). If that occurs and the timeline of this investigation stretches into 2023, it will mean that the Biden Justice Department is investigating the boss’ rival for the highest office in the land after campaign season has started. This can be fixed. Both Mr. Trump and Mr. Biden should use the investigation as the excuse for withdrawing from the race for the Presidency in 2024. Mr. Trump is too busy organizing his defense and Mr. Biden cannot have his Justice Department prosecuting one of his rivals during an active campaign.

The best outcome here is that the investigation goes on and if it leads to indictable offenses, an indictment should occur. Upon the indictment, Mr. Trump should drop out of the 2024 race and upon Mr. Trump’s withdrawal, Mr. Biden should decline to run for re-election to provide a free path for his own Department of Justice to prosecute Mr. Trump.

Then the no-win Garland decision may be a mega-win for everyone.

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