Why Donald Trump won’t end up in court over Mar-a-Lago raid findings

HALIFAX—So now the world has seen a photograph of government documents, dozens marked "top secret," that were seized by the FBI from ex-U.S. president Donald Trump’s Florida home. It is becoming more than obvious that Trump stole these documents on his way out the White House door, spiriting them off to Mar-a-Lago with the intention of keeping them. I say it is becoming obvious that this was a consciously illegal act because the FBI recovered 33 boxes of classified documents in its recent search of the Trump residence, months after the former president said he had handed over all classified material to the National Archives. That was a lie, whether told by Trump, or his lawyers. And it goes a little further than that. The Department of Justice has reason to believe that some of these documents were moved and hidden with the express intent of obstructing the FBI’s investigation aimed at recovering them. That is a felony offence that can send a person to jail for 20 years. Under the Presidential Records Act, the owner of the documents is the U.S. government, and their proper home is the National Archives, not Trump’s Mar-a-Lago storage room. Some of the top secret documents were found in Trump’s personal office, including some in his desk. Anyone sitting at that desk could have seen them. Given that no one who is out of government can keep any official documents, let alone ones affecting national security, Trump is in trouble under a number of federal statutes, including the Presidential Records and Espionage acts. A strong case can also be made for obstruction of justice, since Trump was given several opportunities to comply with the law, but chose instead to illegally retain sensitive government documents. Some people, like lawyer George Conway, husband of former Trump aide Kellyanne Conway, told CNN that Trump has been caught red-handed breaking the law. He described the various defences the Trump legal team has come up with to defend the former president as “insane.” It is hard to disagree. First, they tried to say that Trump didn’t have any classified documents in his possession because he had declassified them all before leaving the White House. Utter nonsense, according to 18 of Trump’s former aides, including his former national security advisor John Bolton. Declassification is a process, not a magic wand job. Then they came up with the empty accusation that the FBI had planted the documents in Mar-a-Lago. Some idiots in the Republican Party began clamouring for the defunding of the FBI. The same ones, by the way, who raised hell when progressives suggested defunding the police as an answer to the string of shootings of young Black males. Trump himself tried to portray the legal FBI search of his home as a raid that blindsided him. In fact, authorities had given Trump months to comply with the law. They got the middle finger. From top to bottom, each of these specious claims was as empty as Trump’s Big Lie that he had won the 2020 election. So should the Donald be getting himself measured for an orange jumpsuit? Probably not. Just two per cent of criminal cases in the United States are decided in court. Some cases are dropped, and between 90 and 95 per cent are resolved by plea bargains. The U.S. justice system has become a kind of fish market, where lawyers for both the government and defendants make deals that sometimes have, you know, the odour of fish. It all comes down to the practice of prosecutorial discretion. In the U.S., and also here in Canada, prosecutors and Crown attorneys have immense power to make deals that bypass a trial. If a U.S. prosecutor decides that it is in the interests of his or her client—the American people—not to charge a person even though there is evidence of an offence, he or she can enter a plea bargain not to charge. Prosecutors are also permitted to enter into sentencing bargaining and even make bargaining deals. The opposite concept is mandatory prosecution. In countries like Germany and Italy, prosecutors are obliged by law to lay charges if there is compelling evidence that a crime has been committed. The power of prosecutors in the United States is vast and largely immune from review. Which brings me to the case of Donald Trump. From the get-go, Trump has tried with considerable success to politicize everything that he touches. When he was in power, he thought officials at the Justice Department were the same as the crews that did the gardening at Mar-a-Lago—his employees. Everything became a loyalty test, which is why he fired former attorney general William Barr on the spot when he said Trump’s claims of election fraud were “bullshit.” Trump also politicized the U.S. Supreme Court, filling it with like-minded conservatives who did his bidding by reversing Roe v. Wade and 50 years of settled law on the abortion issue. Given that millions of women have now lost a fundamental right to control their own bodies, that may yet blow up in the GOP’s face in the November mid-term elections. Former British Prime Minister David Cameron referred to outgoing PM Boris Johnson as a “greased piglet” for his uncanny ability to wiggle unscathed from scandals that would have sunk less gifted squirmers. Trump is Johnson’s American cousin. Remember that Access Hollywood tape? Remember Stormy Daniels? All that came out and he still won his party’s nomination and the presidency. And poor Michael Cohen—Trump’s personal lawyer and fixer—got to go to jail. Trump has a nose for loopholes. Here is the one that will likely keep him out of prison. Since 2020, he has managed to persuade millions of Americans that he was cheated out of victory by corrupt Democrats and Joe Biden. That created a seething rage in his following that exploded on Jan. 6. A mob stormed the U.S. Capitol, looking for Nancy Pelosi and vowing to hang Mike Pence. They almost succeeded in derailing the peaceful transfer of power to Joe Biden. Since 2020, Donald Trump has managed to persuade millions of Americans that he was cheated out of victory by corrupt Democrats and Joe Biden. That created a seething rage in his following that exploded on Jan. 6. Photograph courtesy of Brett Davis/Flickr/Creative Commons Trump is now stoking that same rage with the narrative that Mar-a-Lago was stormed by the FBI Gestapo, and the whole thing is a continuation of a plot to keep him out of the White House. After that absurd claim, some poor fool took an AR-15 to the Cincinnati, Ohio, field office of the FBI looking to kill some agents. That cost him his life. You get the picture; words matter. Trump has already signalled to U.S. Attorney General Merrick Garland that his followers are angry. He even suggested in a note to the A.G. that he could take down the temperature of the country, if Garland wanted him to. You get the drift. If the DOJ dares to indict Trump, his followers will hit the streets of America the way they stormed the Capitol—out for blood. You can be sure that prosecutorial discretion will be the watchword before Trump is ever charged with serious crimes, let alone put on trial. The break for this over-achieving bully could come in any of three ways: prosecutors could charge him with a lesser offence or not charge him at all; they could give him a fine if he pleads guilty to a lesser offence; and they could even make a bargain on what the “facts” are in the case. To make him look more like a person who had messed up, rather than a garden variety felon. This one will get to court about the same time banana trees sprout on the moon. Michael Harris is an award-winning author and journalist. The Hill Times