Whatever happens in the US midterm elections next month, a truly historic American political earthquake is almost certainly coming: the federal indictment of former US president Donald Trump. There are at least six major investigations that could produce such charges, but it seems almost inevitable that the Justice Department must indict the former president regarding the unlawful removal and retention of government documents, including some of the most secret and sensitive in existence.
It is not just that attorney general Merrick Garland adheres to the principle that no one is above the law. For whatever reason, Mr Trump appears to actually wish, and be working hard, to get indicted.
The case arises from hundreds of government documents, all of which belong to the public and by law must be held by the National Archive, unlawfully removed by Mr Trump when he left the White House. For months, the Archive sought to retrieve them, but got nowhere.
The Archive turned to the Justice Department, which succeeded in recovering some documents and securing an affidavit from one of Mr Trump’s attorneys attesting that, after a thorough search, all remaining documents were returned.
There is at least one FBI informant in the former president’s inner circle since authorities were alerted to the existence of large numbers of other government documents, some highly secret, still at Mr Trump’s Florida residence. The FBI then famously executed an August 8 search warrant and retrieved hundreds of additional documents, including from Mr Trump’s desk.
Had Mr Trump surrendered the documents at any time during the first 16 months of the saga, he would surely have been given a pass unavailable to any other private citizen or former official and the issue likely considered resolved. But it strongly appears he deliberately sought to retain and conceal the documents and deceive the authorities.
In February, Mr Trump instructed one of his attorneys, Alex Cannon, to swear under oath that all the documents had been returned. He refused because he suspected, correctly, that it was not true.
Another Trump employee, Walt Nauta, has reportedly admitted to the FBI that Mr Trump instructed him to move boxes of the documents out of a storage room to other parts of his Florida hotel shortly after the documents were subpoenaed by a grand jury in May. Mr Nauta reportedly denied moving the boxes until he was confronted with security camera footage secured by the FBI that shows him doing so.
This is plainly what prosecutors were referring to when they wrote in their August search warrant affidavit that “government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.” That effectively accuses Mr Trump, backed up by apparently very strong evidence, of trying to hide the documents from the government.
According to the New York Times, Mr Trump told his aides late last year he might be willing to exchange the documents he retained for FBI files regarding the investigation into possible dealings by his 2016 presidential campaign with Russian operatives. He was told that was a nonstarter because he had no right to the documents in his possession, which therefore could not be treated as bargaining chips, and that there was no baisis for the Justice Department to hand over any files to a private citizen.
In the waning days of his presidency, Mr Trump had been sternly warned on numerous occasions by key aides, including White House Counsel Pat Cipollone, that all presidential records, including those he was keeping in the White House residential areas, needed to be immediately surrendered to the Archive.
Senior Justice Department officials have reportedly bluntly told Mr Trump’s attorneys that they strongly suspect that he continues to unlawfully retain government documents despite almost two years of this drama. The former president maintains numerous residences, and dozens of empty folders marked as containing classified information were discovered during the August search. The government may well be aware of specific documents that remain missing.
Moreover, the Archive has told Congress that the former Trump administration has not surrendered many known presidential record items.
As this extraordinary and unprecedented conduct developed over the past two years, some of Mr Trump’s aides reportedly came to fear that he was intentionally seeking to bait the Justice Department into searching his property. It now looks like he is actively trying to provoke an indictment.
Not only does it strongly seem that he personally directed the removal, retention and apparent concealment of these documents, and ordered his attorneys to falsely assure the government that he had returned all of them, at his recent rallies he is surrendering the last possible defence to these major felonies, which would be the claim none of this was intentional.
It has long been reported that Mr Trump repeatedly told his aides of the documents, “it’s not theirs, it’s mine.” At an October 9 rally, Mr Trump demanded the government “should give me back immediately everything they’ve taken from me [when the search warrant was executed on August 8], because it’s mine.”
This is the clearest possible statement of intent. He took the documents, retained them, concealed them, falsely claimed to have returned them, and intended to keep them in perpetuity – or strike a bargain with them – and may well be still hiding more, “because they’re mine”.
This all means that it is simply no longer reasonable for the Justice Department to fail to charge Mr Trump in this matter with obstruction of justice, probably violating the Espionage Act, and certainly “the wilful and unlawful removal of government records with the intent to conceal or destroy such records.”
What’s most perplexing is why, at almost every step, Mr Trump seems to have systematically cut off any avenue of retreat for the Justice Department, making it clear he was personally and deliberately responsible for all of these apparent unlawful actions and, by publicly insisting that “they’re mine” and demanding the immediate return of all the documents, even trumpeting his motive.
Mr Garland has no choice, because Mr Trump has left him none. Is it possible the former president believes being put on trial for these major felonies will be politically, personally or financially beneficial? That seems preposterous, but for whatever reason he appears determined to stand trial on these very serious charges.