Opinion | The Impossible Task of Defending Donald Trump


Yet the Justice Department, while rightly calling her behavior “extremely careless,” declined to prosecute — a decision that has infuriated the G.O.P. ever since. “Is there a different standard for a Democratic secretary of state versus a former Republican president?” asked Gov. Ron DeSantis, who is running against Mr. Trump in the Republican primaries while echoing his claims against prosecution. No. But there is a different standard for a public servant who cooperates with the government after apparently making a mistake in handling highly sensitive information, compared with one who plays three-card monte with investigators until they have no choice but to enter his home with a warrant.

That’s not a comparison of Mrs. Clinton and Mr. Trump; it’s a comparison of Mr. Trump and himself. Note that the special counsel assigned to Mr. Trump’s case, Jack Smith, did not charge him regarding any of the documents he returned in early 2022, when he and his lawyers voluntarily sent back 15 boxes in response to a National Archives request. The charges pertained only to those documents that the government had to go in and retrieve.

So let’s be clear about who’s being targeted for what. Mr. Trump created this mess entirely by himself. He didn’t simply violate the law by taking documents that didn’t belong to him. He refused to return many of them when asked. Had he done so, as Mr. Biden and Mr. Pence did, he very likely would not have faced any legal consequences. In other words, people who behave like responsible adults are more likely to get the benefit of the doubt.

The Presidential Records Act. A separate defense of Mr. Trump’s actions has been offered up by the former president’s lawyers for months, and lately it has been appearing with more frequency in right-wing media: He is not guilty, the argument goes, because of a law called the Presidential Records Act. Congress passed this law in 1978, after the Watergate scandal, specifically to prevent presidents from taking papers that don’t belong to them when they leave the White House. (An earlier law stopped Richard Nixon from destroying his own papers, including the Watergate tapes, after his resignation in 1974. Mr. Nixon challenged the law but lost in the Supreme Court.)

The act says explicitly that the federal government “shall reserve and retain complete ownership, possession and control of presidential records.”

And this is how the Trump team interprets the records act: “The president can take whatever he wants when he leaves office,” said Kash Patel, a lawyer who served as a high-ranking national security adviser in the Trump administration. When the president takes a document, he went on, “it transitions from being U.S. government property to the personal, private property of the past president.” This is about as wrong as it is possible to be; it is literally the opposite of what the law says, especially when you are talking about the sort of highly sensitive documents — nuclear secrets, military strategies and so forth — that Mr. Trump is charged with illegally keeping in his possession.

I would call it gaslighting, except it’s not creative enough. “There’s no ambiguity in the law,” said Timothy Naftali, a presidential historian and former director of the Nixon Presidential Library. “The 31 documents that are listed — there’s no way you could apply the P.R.A. and determine they were personal records. Under the P.R.A., they belong to the American people. Trump stole American property.”




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