Here's What I Don't Understand About Never Trump

It's hard to imagine anyone in modern history, and by that I mean back to maybe 1517, who's been investigated as much as Donald Trump. The man is human, certainly not blameless, but so far, despite multiple congressional investigations, two impeachments, and some number of grand jury proceedings, he remains unindicted and unremoved from office. If critics claim he's a narcissist, it nevertheless remains that narcissism is not against the law. Instead, as president, he presided over prosperity and kept us out of wars.

I would enjoy hearing of some historical figure who's been investigated nearly as much, if not more. As I reflect on this, it occurs to me that regimes are normally much more efficient at disposing of those whom they find inconvenient, which may say something about the capabilities of Trump's enemies, and that may lead me to my eventual point here. The reaction of never Trumpers to the Mar-a-Lago raid may actually be illustrative of the overall problem.

Let's take a piece by Allahpundit at the Hot Air blog. I would characterize Allahpundit as something of a pertpetual Nervous Nellie, or maybe even a Hysterical Henrietta, on just about any topic -- over the course of COVID, he's repeatedly warned of progressively more lethal new surges, for instance. Yesterday, he asked, Why didn't Trump give the documents back when the Archives first asked for them last year?

The latest scoop comes from WaPo, which obtained an email sent by the top lawyer at the National Archives to Trump’s team in *May 2021* requesting the return of two dozen boxes of documents. According to that email, Trump’s own White House counsel, Pat Cipollone, had designated the material in the boxes as government property that properly belonged to the Archives in the final days of Trump’s presidency. Even his own lawyers concluded that he had no right to retain the papers, in other words. And the Archives had been nagging him for fully 15 months to please just hand them over before the FBI showed up at Mar-a-Lago.

. . . Former federal prosecutor Andy McCarthy is watching this play out with growing unease. MAGA media has been harping on the fact that Steidel Wall, in her letter to Trump’s lawyers in May, acknowledged that the White House has been involved in this process. But the White House had no choice in that, McCarthy notes: Under federal law, once a former president asserts executive privilege over documents, the Archives *must* consult with the current president to see if he wants to honor the privilege claim of his predecessor. In this case, Biden deferred to Steidel Wall to make the decision, evidently not wanting to insert himself into the matter. It was Trump who dragged Biden into this by asserting privilege, says McCarthy.

All well and good, so far. But also, what we hear is that disputes between ex-presidents and the National Archives over who owns what are routine, and the Clintons, for instance, left not just with boxes of memorabilia but with hundreds of thousands of dollars worth of furniture. Now, if I were an ex-president, I might well decide that disputing who owns the picture of me shaking hands with the Vice Premier of Elbonia isn't worth my time, and I'd tell the movers just to ship it all back. On the other hand, I'm not an ex-president, and I'll grant that to run for that office takes a very different makeup from mine. Trump didn't get rich by deciding some things didn't matter, and notwithstanding, disputing ownership of cocktail napkins with the National Archives, or even procrastinating an answer to their letters, is not an indictable offense.

Here's where things get wonky. Allahpundit quotes fellow never-Trumper Andrew McCarthy:

For those of us who remain skeptical about whether the drastic measure of a search warrant was really necessary (especially given the FBI and DOJ’s evident lack of urgency in the months after Trump’s surrender of the 15 boxes in January 2022), these revelations require grappling with a hard question: Given that the former president was not responsibly securing the government’s most closely held intelligence, that he was trying to prevent the FBI from examining what he’d returned, that his lawyers were either misinformed about or lying about the classified information still retained at Mar-a-Lago, and that even the issuance of a grand-jury subpoena (with potential criminal penalties for noncompliance) had not succeeded in getting Trump to hand over the remaining classified information, what option short of a search warrant would have sufficed?

This introduces the separate question of classified documents into what McCarthy is stirring into a murky gumbo. The Presidential Records Act, under which the Archives had been pursuing certain documents, is not a criminal statute, and there are actually no penalties specified for its violation. Thus I can tell the Archives with impunity to pound sand over the picture of me shaking hands with the Vice Premier of Elbonia. And yes indeed, if I had been so careless with some top-secret estimate of Chinese nukes as to give it to the grand-niece of a major donor who had no reason to see it, I could be held responsible criminally, but that's a separate issue.

The story as both Allahpundit and McCarthy tell it is that the dispute with the Archives had been going on at the cocktail-napkin level for more than a year, since May 2021. In April 2022, the Archives asserted that there had been classified materials in boxes of cocktail napkin level stuff that Trump returned that January.

The problem continues to be severalfold. One is that the president has ultimate authority to declassify documents. The second is that since George Dubya, presidents have been authorized to remove classified documents to the White House residence area from official office premises for simple convenience. The third is that even if classified documents were found in the residence area, where they were authorized, and hurriedly thrown at random into boxes by housekeeping staff as part of the effort to move the Trumps out, there would have been no criminal intent by Trump to disclose them.

It's hard to avoid thinking a search warrant, with its implication of a grand jury investigation and an impending indictment for espionage, would be an overreaction to the situation. McCarthy himself seems to recognize this at some level in a post at National Review's The Corner:

[T]he government usually waits until the end of the investigation to seek search warrants. The Justice Department cannot properly get a search warrant unless it has probable cause that crimes were committed. If it has such probable cause, that almost always means it has a basis to make arrests — for which probable cause that a crime has been committed is also the standard. In a normal case — and there’s nothing normal about the Mar-a-Lago probe — arrest and search warrants are executed at the end, frequently based on the same probable-cause affidavit.

. . . I find the most interesting part of [Judge Reinhart's order to release the redacted affadavit] the revelation that the Justice Department argued that disclosure would reveal, and thus cause unfair prejudice to, uncharged parties. Of course, the major uncharged party here is former president Donald Trump.

. . . On the other hand, maybe the Justice Department said this because the objective here is not to charge the former president with a crime.

. . . Attorney General Merrick Garland knows this. My belief is that what the DOJ, the FBI, the intelligence agencies, and the National Archives and Records Administration wanted was to get the documents back and ensure that highly classified information is returned to its proper secure repositories. I don’t think they’re hot to make a criminal case out of this.

Oh, so that's it. The FBI, as McCarthy himself explains, came roaring in with a search warrant, which is the thing they do when indictment and arrest are normally either simultaneous with the raid or very soon to come, but they didn't want to make a big deal out of it? Was there really no way to explain to Trump that the housekeepers had inadvertently thrown Top Secret docs in with the cocktail napkins on the morning of January 20, and they just want to get this straightened out? Yeah, Pete Strzok's old colleagues will be happy to schedule a non-adversarial session to get this all cleared up, just never you mind.

The whole history of Trump's problems with the deep state, starting with the FBI's entrapment of Gen Flynn during his first days in the White House, suggests that would never fly. I can't imagine that McCarthy even believes his whole story here. Does he really think the Justice Department gets search warrants as just a never-mind? Remember that one way the FBI has historically obtained false confessions is to say "just sign here, this is routine, nothing important." The FBI tried to get Richard Jewell to sign a confession by telling him he was taking part in a training film about bomb detection. Both Allahpundit and McCarthy say there's something wrong with Trump if he doesn't just roll over for this kind of hanky-pank.

And if, as McCarthy says, they weren't going to indict Trump, that's silly, er, who were they going to indict? The housekeeper who packed the boxes? Jeffrey Epstein?

The silver lining is that even as McCarthy paints the most favorable picture he can of the government's motives, it goes again to my first point, that at least the government we have isn't very capable at getting rid of people it finds inconvenient. And Allahpundit and McCarthy should have a tenth of Trump's smarts. There's something basically unserious about this whole post-Trump never-Trump effort.