Why isn’t Tr*mp in jail?
I’ve been struggling to make sense of our country’s (lack of) response to Tr*mp. When I was a kid, I assumed that grown-ups knew what they were doing. Now that I’m decrepit, I realize how wrong I was. The right is crazy with bigotry, 83 million Americans are on antidepressants, and many in power act smugly superior despite only offering superficial solutions to existential problems.
Why isn’t Tr*mp in jail? Did he so break the system that repairs are still ongoing? Is the system so dysfunctionally biased as to be beyond repair? Is our government owned by the people or only by the rich? I don’t believe the Russian propaganda that our democratic system of laws is a joke. But I admit to being angry that the Law did not apply to one rich white guy, either before he took office, while in office, when inciting insurrection, after leaving or before many statutes of limitation expired. Very angry.
Reasons to hope for justice, eventually
But, I’ve gradually become more hopeful for several reasons.
- The DOJ is successfully prosecuting conspiracies against the US, rolling up individual indictments in order to net whole groups of criminals and to prosecute them in batches.
- Since the DOJ has successfully prosecuted seditious conspiracy, they can continue to indict any and all co-conspirators.
- And by choosing this approach, the DOJ has revealed that it is prepared to charge the most serious crimes and charge the conspirators involved, systematically and comprehensively.
- And since fraud and obstruction of justice are among the relevant federal crimes, the DOJ can use the powerful RICO prosecution tools, which are designed to prosecute both corrupt organizations and their leaders.
- And since Tr*mp Org has already been found guilty of fraud to avoid taxes, the DOJ could also take the Al Capone route.
- And further state investigations and indictments—e.g. Georgia—strengthen the DOJ’s hand too.
- Finally, the Jan 6 Committee has disabused many of their naive notions that Tr*mp is just a foolish child who is incapable of orchestrating complex crimes, and in disproving that, they have cleared the path for justice.
Still, why so slow, even with so much evidence and so many crimes to choose from? Various former prosecutors have posted multiple draft charging documents online months ago. Why does every government prosecutor seem so hesitant to file the first indictment? Are former office holders really due this much deference? I mean, he should have been arrested on January 21st last year for having top secret documents in his luggage. Or maybe, that’s the problem.
The Get Out of Jail Free Card Problem
Here’s Michael Cohen talking to Salon on 8 October.
You may remember many years ago, Mattel made the mistake of making the Trump Monopoly game and sent it to Donald. And he was very proud of it. It had his various different assets and so on, most of which have gone bankrupt. But that's not part of the game. He's only interested in one thing, the get out of jail free card. And that's exactly what he saw in those documents. "You want to play with me? Really? I was the former president of the United States. I have documents that are so damaging to this country's national security. Go ahead, indict me, try to throw me in prison. See what happens." What happens is he turns over all this classified information, not as if he hasn't already done it, but he turns all his classified information over to our adversaries, right? "You want to play that game? No problem!"
Michael Cohen may be an ex-con, but he knew enough about Tr*mp to reveal the Trump Org tax fraud. And he has a point.
‘State Secrets Privilege’ & Making Deals
One of the few ways to get a prosecution dismissed before it even gets started is to invoke national security. Most of the time this exception to prosecution is applied to civil cases where a trial would reveal state secrets, but it also could impact criminal cases. All the government has to do is to invoke ‘state secrets privilege’ and then say that the secrets are so sensitive that the judge can’t be allowed to see how sensitive they are. It’s ludicrous, but this ‘logic’ has held up even to the Supreme Court.
Tr*mp was familiar with this. You may remember his old Russian mob friend Felix Slater who had an office in Tr*mp Tower and helped facilitate Tr*mp Tower Moscow with Cohen. Felix stabbed someone in the face and neck with a broken martini glass and also committed a $40 million fraud decades ago. He served 15 months for the first crime and none for pleading guilty to the second, and his criminal record was sealed by a federal prosecutor in return for cooperating on other cases. Felix traded for his freedom, becoming a valuable source for secrets, especially through his contacts in Russia. So, Tr*mp likely knows the value of using state secrets to escape prosecution.
Actually selling state secrets could theoretically get Tr*mp executed, which sounds risky. Also, why sell what you can keep and continue using as leverage? On the same day as Cohen’s quote above, the NYT reported that Tr*mp considered trading “his” documents for FBI Russia investigation documents. (Apparently the FBI wouldn’t give them when he was President, perhaps because he’s still a suspect?)
Overdue Presidential Library Books?
Much of the public reporting about the Mar-a-Lago documents case has focused on the National Archives making requests and being ignored for months. But our top national secrets are actually better tracked than overdue library books, even presidential library items.
That means that our national security establishment must have known exactly which documents had been checked out to Tr*mp and which were still missing on 20 January 2021. So, someone must have asked him to return them. Not sure who approved shipping his boxes to Florida and elsewhere while our nations’ secrets were missing, but no doubt Tr*mp lied about what was in the boxes. Maybe he also lied and claimed to have destroyed his copies, which would fit with his document destroying habits.
But the intelligence folks must have done a threat assessment. He had already released secrets while in office, and he had been impeached twice. It must be someone’s job to say, well, what if he sells us out? And someone must have begun a mitigation plan. Right?
One might assume that national security would be a reason to rush, rather than to go slowly. But once the state secrets were taken out of secure locations, they must have been flagged as potentially exposed, meaning that mitigation would be required. Human intelligence sources must have been warned that their identity might have been exposed at the omelette bar in Mar-a-Lago. And frankly, it would be negligent if it wasn’t somebody’s job right now to spy on Tr*mp and secretly poke around for more documents, which may explain how the government found out about the documents retrieved to date.
And it’s not enough to get the documents back, since Tr*mp knows what’s in them. Tr*mp himself is potentially a national security threat.
How To Prosecute a National Security Threat?
Very carefully. Many media discussions focus on ‘breaking unprecedented norms’ versus ‘no man is above the law’. Others talk about the risk of backlash, as if appeasing his followers would help. But I think the real issue for the government is how to prosecute someone who, according to Cohen at least, has zero loyalty to the country and would threaten to release secrets to our adversaries in order to avoid prosecution.
I think the substantive risk to national security is a more likely reason for delaying prosecution than incompetence, cowardice, corruption or deference to sacred norms of protocol. DOJ often has to deal with state secrets, and while they won’t discuss them in public, national security issues definitely can and must affect certain prosecutorial decisions. Whenever secrecy is due to national security, delays are inevitable and some investigations may never see the light of day.
Even in just reviewing Tr*mp’s previous investigations, DOJ needed intelligence clearance. Many of the earlier cases that involved Tr*mp are mired in secrecy: the Mueller Report, its alternate and the Senate Russia investigation are all still partially redacted. And various court records, cases and indictments are still sealed, especially vis-à-vis Russia. Moreover, intelligence officials must have sat down with AG Garland to discuss their risk assessment and mitigation timeframe regarding the stolen secrets and to discuss careful cooperation.
Perhaps the big mystery of why it has taken so long to prosecute Tr*mp personally for anything, isn’t whether AG Garland is milquetoast, but rather, that untangling the clear and present danger posed by revealing Tr*mp’s secrets and finding a path to prosecute without precipitating a new crisis isn’t easy? Maybe part of the delay is simply because prosecuting Tr*mp before securing the secrets would risk our national interests? It might not be that DOJ is afraid of antagonizing Tr*mp, but rather that they don’t want to antagonize him, until everyone is ready.
Naturally, I’m only speculating and don’t know any of the answers. But, in the seasonal spirit of giving, here’s a poll for folks to chime in with your answers. Happy holidays!