Napolitano: Trump Is in Hot Water

Legal commentator Andrew Napolitano explains why he says Donald Trump will be indicted after the Mar-a-Lago search turned up classified documents:

Trump ran afoul of the same law as Edward Snowen and unknowingly helped the case against himself with his public pronouncements. (Image by Laura Poitras, via Wikimedia Commons, license.)

When he learned from a phone call that 30 FBI agents were at the front door of his Florida residence with a search warrant and he decided to reveal this publicly, Mr. Trump assumed that the agents were looking for classified top-secret materials that they'd allege he criminally possessed. His assumptions were apparently based on his gut instinct and not on a sophisticated analysis of the law. Hence, his public boast that he declassified all the formerly classified documents he took with him.

Unbeknownst to him, the feds had anticipated such a defense and are not preparing to indict him for possessing classified materials, even though he did possess hundreds of voluntarily surrendered materials marked "top secret." It is irrelevant if the documents were declassified, as the feds will charge crimes that do not require proof of classification. They told the federal judge who signed the search warrant that Mr. Trump still had NDI in his home. It appears they were correct.

Under the law, it doesn't matter if the documents on which NDI is contained are classified or not, as it is simply and always criminal to have NDI in a non-federal facility, to have those without security clearances move it from one place to another, and to keep it from the feds when they are seeking it. Stated differently, the absence of classification -- for whatever reason -- is not a defense to the charges that are likely to be filed against Mr. Trump.

Yet, misreading and underestimating the feds, Mr. Trump actually did them a favor. One of the elements that they must prove for any of the three crimes is that Mr. Trump knew that he had the documents. The favor he did was admit to that when he boasted that they were no longer classified. He committed a mortal sin in the criminal defense world by denying something for which he had not been accused. [bold added, links removed]

Napolitano continues, elaborating on the obstruction allegation and the legal basis for an indictment, which I think will answer questions I got when I posted on the raid some time back.

The irony of Trump's situation is not lost on Napolitano, despite his opinion that such laws should not be on the books:

In a monumental irony, both Julian Assange, the WikiLeaks journalist who exposed American war crimes during the Afghanistan and Iraq wars, and Edward Snowden, the former National Security Agency employee who exposed criminal mass government surveillance upon the American public, stand charged with the very same crimes that are likely to be brought against Mr. Trump. On both Mr. Assange and Mr. Snowden, Mr. Trump argued that they should be executed. Fortunately for all three, these statutes do not provide for capital punishment. [bold added]

I have not considered these laws enough to have a strong opinion about whether they should or should not be on the books. (Something protecting secrets legitimately needed for national defense certainly should be, but that its a separate issue, as is whether such laws would apply to whatever Trump had in his home.) Nevertheless, they are there and they are being used bring down Donald Trump, who will happily make himself a martyr over this.

It is a sad commentary on the state of our Republic that this unprincipled, careless lunatic will be taken as the poster-boy of liberty despite mouthing support for such laws. These laws should be questioned, but Trump will merely incite his party and the Democrats -- who can't seem to make a positive case against Trump -- are quite happy to use them.

On top of that, rather than the Republicans making even a Reaganesque call for freedom to oppose the increasingly totalitarian Democrats, they will be babbling or perhaps rioting about Trump instead.

The nation needs better than the Democrats and it needs better than Trump.

-- CAV