Up next
Author
Tags

It’s true, the Justice Department has a rule about not making any sudden moves on politically sensitive investigations shortly before an election for fear of influencing the results.

Although, as we saw not so long ago, rules are made to be broken.

II you thought Roe being overturned was a curveball for the midterms, imagine the feds frog-marching a handcuffed Trump out of Mar-a-Lago two days before Election Day. Hoo boy.

No worries. According to Bloomberg, the riots won’t happen until November at the earliest.

That doesn’t mean the investigation will pause, only that official public action will cease so as not to inject the DOJ into electoral politics. Quietly obtaining an indictment under seal and then unsealing it after Election Day is potentially still on the table, Bloomberg notes.

I’ve been skeptical that they’ll charge him and remain skeptical, not because they don’t have the goods but because they’ve achieved their primary goal here, the safe return of classified material. But I’m less certain than I was last week. The argument against indicting him initially was that the public won’t understand why what he did rises to the level of a criminal offense, particularly after Hillary Clinton wasn’t charged in 2016. That argument still obtains, but it gets weaker day by day. I can imagine a lot of Americans who didn’t have strong feelings either way about this fiasco looking at that photo of the documents at Mar-a-Lago and thinking, “Oh, c’mon.”

The Times has a story out this afternoon about the now-famous photograph confirming that agents didn’t find documents strewn about the floor. Rather, they fanned them out as part of a standard array for cataloging evidence: “Files or documents are not tossed around randomly, even though they might appear that way; they are usually splayed out so they can be separately identified by their markings.” Notably, “declassified” markings are *not* visible on the documents in the picture despite Trump’s claim that aides had a standing order to declassify anything he took with him.

A Twitter pal reminded people today that evidentiary arrays by police aren’t unusual in other contexts:

That’s not quite the same thing as the Mar-a-Lago photo since the FBI was documenting what was being removed as part of a search, not showing off the spoils of an arrest to the press. But in both cases the point is similar: “Here’s the contraband, displayed so you can see it all clearly.”

The fact that the documents are marked so obviously, some with color-coded “Top Secret” and “Secret” cover sheets, has now become a problem for a number of Trump lawyers. The two lawyers who negotiated with the feds for the return of the second tranche of documents in June are on the hot seat, forced to explain why they swore that a “diligent search” had been conducted to try to locate any further classified material and that none had been found. The stuff in the photo wasn’t easy to overlook. To overlook it, they may have wanted to overlook it. Or been instructed to overlook it.

Which now makes them potential witnesses to obstruction, if not suspects. This is curious too:

In its filing late Tuesday, the Justice Department pointedly noted that Mr. Trump’s lawyers had not been as cooperative and open as they could have been at the June 3 meeting.

“Critically, however, the former president’s counsel explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained,” the filing said.

The Justice Department’s account clashes with that of Mr. Trump’s legal team. In a complaint filed on Aug. 22 and signed by Mr. Corcoran and two other lawyers, they describe providing “complete cooperation.” After Mr. Bratt asked to inspect the storage room, investigators were escorted there and once their inspection was completed, the complaint states, an F.B.I. agent said: “Thank you. You did not need to show us the storage room, but we appreciate it. Now it all makes sense.”

It’s hard to believe Trump’s team would lie in a court filing about what an FBI agent told them, but given the caliber of representation he’s gotten lately I concede that anything is possible.

There’s another potential issue. If Trump’s lawyers were quietly handling some of these documents behind the scenes and lacked the proper security clearances to do so, they have a problem. You don’t get to see state secrets to which you’re not lawfully entitled and then say, “It’s okay, I’m a lawyer.” One of Trump’s other attorneys, Alina Habba, claimed in an affidavit shortly before the FBI’s Mar-a-Lago op that she had recently conducted her own thorough search of the complex looking for documents related to a subpoena in the New York AG’s case against Trump. That search included “all desks, drawers, nightstands, dressers, closets, etc.” The DOJ claimed in last night’s filing that classified documents were found in a desk drawer. Did Habba see those documents? Did she handle them? Did she know about the classified material in the storage room? Does she know if Trump or his two main lawyers in the documents case, Evan Corcoran and Christina Bobb, knew?

Normally you can’t compel a lawyer to testify against their client. But if the lawyer is participating in a crime or fraud, attorney-client privilege doesn’t apply. If Corcoran, Bobb, or Habba were helping to hide the stash of documents in the storage room from the feds, they’re in jeopardy.

News about Trump feels less like a genre of politics nowadays than an episode of “Law & Order.” A really weird episode, admittedly, where there are no murders and defense counsel is obviously incompetent. But still.

Exit question: What are the odds that Republicans flip the House, the DOJ goes on to indict Trump, and Trump ends up on trial around the same time the House is impeaching Merrick Garland?

Source: