The Department of Justice is now formally investigating Donald Trump for serious alleged crimes including violating the Espionage Act and obstruction of justice in connection to his unlawful possession of top secret and highly classified materials.
During a court-ordered search of his Mar-a-Lago resort and home last week, the FBI retrieved 11 sets of classified documents that, according to some reports, may include information about "nuclear weapons." Donald Trump had more than a year to return these documents and did not do so. One of his attorneys apparently misrepresented the facts when informing the Justice Department that all the classified documents in Donald Trump's possession had been returned in June.
This is the first time in American history that a former president has been under criminal investigation, let alone for serious federal crimes. That is to be expected, given that Trump represents a unique and singular danger to American democracy and society.
Predictably, Trump has made numerous false or misleading statements about the FBI investigation, claiming that he is innocent, that evidence was "planted" to incriminate him, that his home was "raided" and "under siege" by the FBI and that he is being victimized as part of a "conspiracy" by the "deep state" and other sinister forces who are desperate to stop his return to power.
Will Donald Trump finally face something approximating justice for his five decades or more of apparent and aggressive lawlessness, culminating in a criminal presidency and an attempted coup, with the possibility of treason and criminal espionage? Will the American people finally be rid of this meddlesome would be tyrant-king with millions of followers, leader of a neofascist movement that is literally threatening to uproot and destroy American democracy? Do these recent events change everything? Nothing? Something in between?
For those of us with public voice on more or less mainstream platforms, there are certain norms and rules one is expected to follow in order to succeed.
Priests in the Church of the Savvy and members of the commentariat are largely expected to assume a "rational" and detached demeanor, and often to channel what media critic Jay Rosen has famously called the "view from nowhere." A central part of this performance is being resolute in one's conclusions even if those are demonstrably and repeatedly wrong. One is also expected to tell the target audience what it wants to hear, for the most part, and not to seriously challenge their expectations. The norm is to lead readers or viewers or listeners toward the truth gently instead of presenting it to them plainly and clearly.
I have no idea what will happen if Trump is prosecuted — still less if he is tried and convicted. But I think there are good reasons to be afraid.
In the digital age there is also significant pressure to produce more "content" more quickly, to be fast and first with the "hot take" and not to appear uncertain. A more substantive and deeper truth is often the victim of such conventions. My answer in this context breaks most of these rules: I do not know what will happen if and when Donald Trump is finally prosecuted for his crimes. I certainly do not know what will happen if he is convicted.
I say this as someone who can reasonably be described as an expert on Donald Trump, American fascism and our worsening democracy crisis. The current state of America is confusing, and not easily deciphered. We will have to grapple with and muddle through the moments ahead, both as individuals and a society, without anything like full clarity about the way forward through this nightmarish fog. The meaning of this period will come in hindsight, if it comes at all.
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In an essay from the Conversation, republished at Salon, Joseph Ferguson and Thomas Dirkin offer this important context on the nature of the documents involved and the ambiguity surrounding them, observing that cases involving classified information "are nearly impossible to referee from the cheap seats," since "[n]one of us will get to see the documents at issue, nor should we":
Even if we did, we would not be able to make an informed judgment of their significance because what they relate to is likely itself classified — we'd be making judgments in a void.
And even if a judge in an Espionage Act case had access to all the information needed to evaluate the nature and risks of the materials, it wouldn't matter. The fact that documents are classified or otherwise regulated as sensitive defense information is all that matters….
The Espionage Act is serious and politically loaded business. Its breadth, the potential grave national security risks involved and the lengthy potential prison term have long sparked political conflict. These cases are controversial and complicated in ways that counsel patience and caution before reaching conclusions.
Writing at Bloomberg, Timothy L. O'Brien asks the most basic and fundamental forensic question: Why would Donald Trump even have these classified and top secret documents in his possession? One reason, he suggests, is relatively innocent: "Trump is a seven-year-old grown old, and he liked some of the cool doodads you get your hands on as president." But the next two reasons are "deeply damaging and troubling":
So, Reason Two: Money. Unfettered greed has motivated Trump his entire life. He didn't get into the casino business to beautify Atlantic City. He didn't propose a mega-development on Manhattan's West Side because it would have made New York more livable. He didn't start Trump University to educate students, and he didn't host "The Apprentice" to tutor entrepreneurs. He didn't originally run for president to revitalize democracy. Money, money, money….
Reason Three: Reputational damage. Trump reportedly held on to letters he exchanged with North Korea's dictator, Kim Jong Un. Perhaps vanity inspired that move because Trump has referred to such correspondence as "love letters." But what other communications are contained in the documents Trump kept? Anything with Russian President Vladimir Putin or Chinese President Xi Jinping? How about documents pertaining to Trump's phone calls with Ukrainian President Volodymyr Zelenskiy from that time when Trump was trying to strong-arm Zelenskiy into digging up dirt on his political opponent, Joe Biden. Those communications led to the first of Trump's two impeachment proceedings....
The frenetic pace at which Trump has seeded the ground with lies in the wake of the Mar-a-Lago search certainly suggests that he has something to hide and that he's worried about the investigation.
Would convicting Donald Trump for violating the Espionage Act and mishandling official documents save the country from the possibility of his becoming president again, as some have suggested? That's not entirely clear, but Amy Sherman explores that issue at Poynter:
Federal statute says it is a crime to willfully and intentionally remove official records and that such a crime would disqualify the defendant from "holding any office under the United States." But some legal scholars say that statute can't be used to bar Trump from a 2024 presidential bid. The Constitution's list of criteria to run for president mentions only age, citizenship and residency — there is no mention of criminal charges or convictions….
Rick Hasen, an election law expert at the University of California, Los Angeles, said he doesn't see a conviction for violating 18 U.S. Code 2071 preventing Trump from running for office.
"That statute cannot trump the Constitution, which sets the exclusive qualifications for President," Hasen wrote on his election law blog. "So this is not a path to making Trump legally ineligible to run for office."
The U.S. Constitution upholds the principle that voters decide who shall represent them. The Constitution says only natural born citizens or U.S. citizens who are at least 35 years old and have been a resident of the U.S. for 14 years can run for president.
Previous Supreme Court rulings hold that a state cannot prohibit indicted or convicted felons from running for federal office, and Congress cannot add qualifications to the office of president, said Derek Muller, a law professor at the University of Iowa.
Someone could use the records statute to attempt to challenge Trump's potential run for office, and the courts would then rule on the constitutionality of his bid, said Georgetown law professor Victoria Nourse.
Here's one thing I am absolutely certain about regarding Donald Trump and these imminent questions of crime and punishment. I am deeply afraid of what comes next. Trump followers are already threatening more right-wing terrorism and political violence, potentially on a massive scale if he is punished or faces significant consequences for his crimes.
Alan Feuer of the New York Times reported last week on the escalation of right-wing rhetoric and the increasing threat of political violence:
According to the FBI, there are now about 2,700 open domestic terrorism investigations — a number that has doubled since the spring of 2020 — and that does not include lesser but still serious incidents that do not rise to the level of federal inquiry. Last year, threats against members of Congress reached a record high of 9,600, according to data provided by the Capitol Police.
Nonetheless, it is exceptionally rare for most adults to willfully inflict harm on other people, especially for political reasons, said Rachel Kleinfeld, a senior fellow in the democracy, conflict and governance program at the Carnegie Endowment for International Peace.
Still, Kleinfeld said, there are ways of lowering the average person's tolerance for violence.
If political aggression is set in the context of a war, she suggested, ordinary people with no prior history of violence are more likely to accept it. Political violence can also be made more palatable by couching it as defensive action against a belligerent enemy. That is particularly true if an adversary is persistently described as irredeemably evil or less than human.
"The right, at this point, is doing all three of these things at once," Kleinfeld said.
There is little evidence that Republicans and right-wing media figures have tempered their rhetoric, even as Congress and the Justice Department investigate the Jan. 6, 2021, attack. ...
Even before the search at Mar-a-Lago, some of Trump's most vocal supporters had been casting the political stakes as existential, suggesting that the country was already embroiled in an end-of-times clash between irreconcilable foes.
Throughout the Trump era, we have seen considerable evidence that some of Donald Trump's political cult followers are willing to kill and die at his command. Alyssa Rosenberg explored this issue recently in a powerful essay for the Washington Post:
The absurdity and maliciousness of the cause for which these people have died only compounds the horror of their deaths. How is it that no one, no institution, could offer something more substantive than the manifest hollowness of Trump and Trumpism?
An essential part of Trump's malign magic is its impermeability.
Suggest that his followers deserve better — whether that is an actual infrastructure package or a leader who appeals to their best qualities rather than their basest — and you're accused of exhibiting the very contempt that made Trump attractive in the first place. Suggest Trump is scamming his followers, and you're a tool of the deep state. According to Trump and his many enablers, there is no evidence that isn't planted or manufactured, no moral act that is disqualifying, no act for which Trump himself can be held responsible.
Even the people who seek to martyr themselves in Trump's defense can be redefined and reinterpreted through this corrupt logic: On social media, Trump fans aren't celebrating [the man who attacked an FBI office in Ohio] as a Trumpist patriot. They're dismissing him as a false flag planted to paint the FBI in a flattering light.
Those of us who live outside the boundaries of this mad realm may be tempted to count ourselves lucky. Still, we should be concerned for the residents of Trumpland for their own safety. And if that's not enough, we should care because the people who die for Donald Trump may someday take others with them.
David Klepper of the Associated Press reports on a "joint intelligence bulletin from the FBI and Homeland Security [that] warns about an increase in violent online threats targeting federal officials and government facilities":
Those include "a threat to place a so-called dirty bomb in front of FBI headquarters," along with calls for "civil war" and "rebellion," according to a copy of the document obtained by The Associated Press.
Mentions of "civil war" on platforms including Facebook and Twitter increased tenfold in the hours immediately after last week's search of Mar-a-Lago, according to an analysis by Zignal Labs, a firm that analyzes social media content.
Many of the posts contained false claims suggesting President Joe Biden ordered the FBI to search Trump's home, or that the FBI planted evidence to incriminate Trump.
"Biden sending the FBI to raid a former President, Mr. Donald Trump's home is a declaration of WAR against him and his supporters," wrote one poster on the Telegram platform.
The intelligence bulletin also noted federal law enforcement officials have identified multiple threats against government officials involved in the Mar-a-Lago search, including calls to kill the magistrate judge who signed the search warrant.
The names and home addresses of FBI agents and other officials have been posted online, along with references to family members who could be additional targets, according to the intelligence documents.
Rep. Bennie Thompson, D-Miss., who chairs the House select committee investigating Jan. 6, has described these threats as "ominously similar to the online rhetoric that preceded the Jan. 6, 2021, attack on the U.S. Capitol," Klepper reports.
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In November of 2019, I spoke with Dr. Jerrold Post, formerly the CIA's head psychological profiler and the founding director of its Center for the Analysis of Personality and Political Behavior. Of the hundreds of interviews I've done for Salon, on my podcasts and elsewhere about Trump and America's crisis, that conversation lingers with me the most. Post sounded tired but energetic, and spoke with both clarity and gravity. He struck me as a deeply serious man who had seen a great deal, and who held secrets he could not share with me or virtually anyone else. Yet within those limitations he wanted me — and, more important, the American people — to understand the extreme danger that Donald Trump and his movement represent to the country and the world.
We had a long phone conversation one evening, and it all felt like a scene from a spy thriller or an issue of the graphic novel "The Department of Truth," in which some great and terrible secret is being imparted to the main character. In this case, that character was eager to know that truth, yet also frightened and terrified of it and uncertain that he was worthy of such knowledge and awareness.
In 2019, I interviewed the former lead psychological profiler for the CIA about Donald Trump. It felt like a scene from a spy thriller — and that conversation lingers with me.
As I listened to Dr. Post talk, I kept thinking about my father, who was a maintenance man and janitor, and my mother, who was a home health care worker and private duty nurse. This distinguished person with a high-level intelligence clearance, who had advised presidents, was sharing his knowledge with a working class Black man. America is a bizarre and wonderful place, where such things can happen. I love this country and its strange ways; I am also frustrated by it and worried for it because of all the self-inflicted wounds that limit its full potential for greatness and have done so since before the founding. America is a hot mess; no one loves or hates like family does.
When I asked Dr. Post what would happens with Donald Trump, a man so malevolent and dangerous, if he were to lose the upcoming presidential election, he told me this:
In the last chapter of my new book, I quote one of my favorite poems, which is, "Do not go gentle into that good night, but rage, rage at the dying of the light." I do not believe that Donald Trump will go gentle into that good night. In a close election, there is a very real hazard in terms of both potential outcomes. Should Trump win, as he did in 2016, he will make it a much bigger win and talking about the fraudulent election support on the Democratic side. But should Trump lose narrowly, I think we can be assured that he will not concede early. Trump may not even recognize the legitimacy of the election.
As we saw on Jan. 6, 2021, that warning was correct. As we look ahead, it may be helpful to remember the truism that courage is not the absence of fear but the strength to persist and do the right thing despite it.
If Donald Trump is indicted — and even more so if he is tried and convicted — those Americans who believe in real democracy and are willing to fight for it will be tested even more. Will they pass or fail that test? We will soon find out, but a happy ending is not guaranteed. The American people must write that next chapter boldly and with courage. If they are not afraid of what that will require, they should be.