As he was rolling along in the comments he offered outside his golf club in Bedminster, N.J., on Tuesday evening, former federal prosecutor Andrew Weissmann (and veteran of special counsel Robert S. Mueller III’s probe) noticed something.
“Whatever documents the president decides to take with him, he has the right to do so,” Trump said in his speech. “It’s an absolute right. This is the law. And that is something that people have now seen.”
In an interview on MSNBC, Weissmann (who can be trusted to have a firmer grasp on the legal issues at play) pointed out that this undermines his case rather than proving it.
“When you are charged with the illegal retention, the illegal possession of the documents,” Weissmann said, “it is not a good idea to say, ‘Hey, you want to know why I took these? Because I could.’ That is not a defense to that charge. That is an admission to the charge.”
This, of course, is why lawyers tell their clients to keep their mouths shut. But Philip Bump makes the point that Trump’s only defense against the criminal charges is becoming POTUS again. Somehow, dimly, he may know he can’t win in court. He’s swinging for the fences. Bump continues,
This is why he may think it makes sense to frame his arraignment in the context of his campaign, to fundraise off it and to turn the attention it generates into political attention. This is why he might not care too much that the Andrew Weissmanns of the world are able to pick out incriminating details — they’re only incriminating for a competition on which Trump isn’t focusing.
I’m not even going to address why what Hillary Clinton and Joe Biden did with government records is no where in the same ball park as what Trump did. And I trust y’all know that as well as I do. Now he’s got his defenders repeating “Presidential Records Act” over and over, in the belief that the Presidential Records Act allowed him to keep whatever records he wanted. This, of course, is the exact opposite of what the Presidential Records Act actually says.
A separate defense of Mr. Trump’s actions has been offered up by the former president’s lawyers for months, and lately it has been appearing with more frequency in right-wing media: He is not guilty, the argument goes, because of a law called the Presidential Records Act. Congress passed this law in 1978, after the Watergate scandal, specifically to prevent presidents from taking papers that don’t belong to them when they leave the White House. (An earlier law stopped Richard Nixon from destroying his own papers, including the Watergate tapes, after his resignation in 1974. Mr. Nixon challenged the law but lost in the Supreme Court.)
The act says explicitly that the federal government “shall reserve and retain complete ownership, possession and control of presidential records.”
And this is how the Trump team interprets the records act: “The president can take whatever he wants when he leaves office,” said Kash Patel, a lawyer who served as a high-ranking national security adviser in the Trump administration. When the president takes a document, he went on, “it transitions from being U.S. government property to the personal, private property of the past president.” This is about as wrong as it is possible to be; it is literally the opposite of what the law says, especially when you are talking about the sort of highly sensitive documents — nuclear secrets, military strategies and so forth — that Mr. Trump is charged with illegally keeping in his possession. I would call it gaslighting, except it’s not creative enough.
“There’s no ambiguity in the law,” said Timothy Naftali, a presidential historian and former director of the Nixon Presidential Library. “The 31 documents that are listed — there’s no way you could apply the P.R.A. and determine they were personal records. Under the P.R.A., they belong to the American people. Trump stole American property.”
When dealing with Trump, of course, it’s entirely possible he believes the Presidential Records Act allowed him to take the documents. Trump’s concept of “factual” is a tad wobbly. Between his numerous personality and psychological pathologies and his profound stupidity, it’s hard to know if he knows he’s lying. What Kash Patel’s issues are, however, I do not know.
Right now we may well be in a race to see if Trump can be convicted of something before the 2024 general election. It’s also possible that Trump’s legal problems will erode his election chances. We’ll see.