Observations of an ex-pat – Law vs Politics

The United States is facing a major question: Does political support trump the rule of law?

There is no doubt that Donald Trump has political support from a large proportion of the American population. He is virtually a shoe-in for the 2024 Republican presidential nomination.

Whether or not he is guilty of one of any number of crimes is immaterial to his base of supporters. Trump represents small government libertarian-minded conservative America. The values that he has come to embody are seen as more important than any number of words in any number of law books.

He has the support “of his people” and that lifts Trump to the far edge of the reach of the long arm of the law. Any attempt to argue otherwise, or to enforce the law, is jackboot Nazism and an establishment conspiracy to thwart the will of the people.

Given that many of Trump’s people are gun-toting Second Amendmenters, using the law against the former president risks the serious danger of violence.

Attorney General Merrick Garland is all too aware of the need to balance political reality with the rule of law. Donald Trump is a special case. No person is above the law, but realpolitik means that some people are on its edges. If the Department of Justice—or anyone else—is going to take any kind of legal action against the former president then it must be totally convinced of his guilt well beyond a reasonable doubt– and then some.

That is why Garland has so far refused to pursue the serious allegations made against Trump by the congressional investigation into the Capitol Hill Riots. The committee has unearthed some seriously damning information. But so far it is—in legal terms—largely hearsay. This is because Trump has refused to testify or allow any of his staff to do so.

If Donald Trump appeared in court charged with an offence related to the 6 January riots then he would simply refuse to incriminate himself under the terms of the Fifth Amendment. He has done it before. This week in fact. White House staff would do the same. Without their unperjured testimony the prosecution would find it difficult to prove their case.

Trump would go free and claim that he had been found innocent. That would be another lie. The charges would be unproven, which is a different matter altogether. But that wouldn’t matter. The ex-president would shout witch hunt, conspiracy, and Nazi justice and he and his supporters would demand revenge, or what they would call “justice.”

But taking material from the White House, or destroying records, is another—more easily provable matter altogether. All you have to do is find the records some place other than where they are supposed to be and prove that the former president is responsible for moving them to the other location.

Under American law, all correspondence, texts, emails, even presidential notepad jottings and doodles are the property of the US government. On the day that the president leaves the White House all the above must be handed over to the National Archives. Failure to do so is a criminal offence punishable with a major fine and/or three years prison time. Finally—and here’s the kicker—the offender is barred from ever again holding elected office.

It is known that some Secret Service call logs, phone texts and Pentagon documents are missing. Photographs have been published of torn papers in the toilet bowl. They were covered in the Trump scrawl. Fifteen boxes of documents were moved from the White House to Trump’s Florida base at Mar-a-Lago when Donald left the White House. For nearly two years, the National Archives, has been politely asking for their return. Some were sent back—but not all.

The demand for the return of those papers does not emanate from a Democrat-controlled committee or from the FBI. It comes from the National Archives and Records Administration whose director is career archivist Debra Steidel Wahl. She is not interested in whether the missing papers implicate Donald Trump in any misdeeds. Her job—her interest—is in maintaining all records pertaining to the Trump Administration so that future historians can compile accurate accounts.

So, she went to the FBI, and asked them to retrieve the missing records. They asked her for proof that the records were Mar-a-Lago. She gave them what proof she had. They took that to a federal judge who was convinced that there was a strong enough case to issue a search warrant. And rest assured, because it was Donald Trump, he was going to have to be very convinced.

And guess what, the FBI left Mar-a-Lago with several boxes. How many and what they covered no one is saying; not Trump, not Biden, not Garland and not the FBI. But, once again, the content of the records is immaterial. The only relevant legal point is that White House records were in a place where they should not have been. It is worth noting at this stage that the notorious gangster Al Capone did not go to prison for murder, racketeering, theft or any other salacious felony. He was convicted of the rather pedestrian crime of tax evasion.

Capone, however, was not President of the United States. He did not enjoy a 40 percent approval rating in the opinion polls. He could not galvanise a base of tens of millions to demonstrate and perhaps—quite literally—fight. But does this put Donald Trump beyond the law? If it does then it would have far-reaching consequences that are just too awful to contemplate.

* Tom Arms is foreign editor of Liberal Democrat Voice and the author of “The Encyclopedia of the Cold War” and the recently published “America Made in Britain” that has sold out in the US after six weeks but is still available in the UK.

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This entry was posted in Op-eds.


  • Laurence Cox 13th Aug '22 - 11:29am

    It’s not just that Trump removed documents from the White House; it is also that some of these documents were classified up to Top Secret and that Trump had taken them to a location where they could not properly be secured. That alone should be enough to ensure that he spends the rest of his life in Fort Leavenworth prison.

  • Tom Seelye Arms 13th Aug '22 - 11:39am

    Since I wrote this it has been announced that the reason for the raid on Mar-a-lago was a that Trump had breached the Espionage Act by removing and possessing top secret documents. The FBI agents removed documents marked Top Secret and classified. It gets worse and worse.

  • Peter Hirst 14th Aug '22 - 1:21pm

    It’s not Trump as much as the culture that allows this behaviour to continue. Culture is something that needs to be actively secured and guided. A constitution could provide a framework within which actions are judged to secure this culture.

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