On December 9, 2022, U.S. District Judge Beryl A. Howell denied a request filed by Special Counsel Jack Smith and team to hold Donald Trump in contempt for failing to cut to the chase and designate ONE person with ultimate responsibility for signing affidavits stating that all requested top-secret documents either HAVE or HAVE NOT been returned to the government. Smith's request seemed perfectly logical and appropriate in light of the sensitivity of the information involved and Trump's consistent, irresponsible behavior in this case. In rejecting the request, Judge Howell basically told the two parties to act like adults, figure something out and GET ON WITH IT.
But that's exactly what Smith was trying to do.
If nothing else, Howell's ruling confirms that Trump has again demonstrated his status as a pre-eminent innovator in white collar crime. Some are saying he might be the greatest of our time. Others are saying the greatest of all time. Trump has essentially absorbed all of the legal abstractions of incorporation and learned to apply them to his inner criminal psyche, in all of its incarnations -- Trump the ex-President, Trump the CEO, Trump the resort resident, etc. -- and foisting external legal obligations involving those different roles upon employees and lackeys assigned to each gigantic corner of his ego. Given Trump's primary modus operandi -- learned at the feet of the master, Roy Cohn -- of exaggerate / sue / lie / delay / obfuscate, he is providing the rest of the white collar criminal cadre a master class in staffing out obstruction of justice and contempt for the law.Everyone in the country, including Judge Howell, apparently needs to be reminded that Smith's work In "the document case" has TWO distinct purposes. One is to determine if Trump's conduct in taking thousands of confidential documents, mixing them with low-security detritus and souvenirs and improperly securing said stolen documents will rise to the level of an indictable offense and eventual conviction. The OTHER purpose is the GET ALL OF THE DOCUMENTS BACK and ensure they do not become exposed and divulge names / methods / contacts of top-secret assets across the globe.
Trump's criminal actions in delaying the return of the documents not only thwart justice for the first goal of obtaining justice regarding his actions but thwart the second goal as well. And as maddening as it might be, the damage of those documents leaking into the wrong hands could be worse than Trump the individual somehow escaping individual justice. WE DON'T KNOW because his obfuscation and delay have prevented the government from KNOWING WHAT WAS TAKEN and WHAT COULD STILL BECOME EXPOSED IN THE FUTURE IF NOT RECOVERED.
Would ANY other US citizen thought to have taken THOUSANDS of top-secret documents be allowed to trigger this kind of paper chase with five lawyers playing Who's On First? Would any other US citizen with a couple of homes accused of similar actions have only faced ONE search warrant for ONE home? Even after having been found to have filed a false affidavit claiming the return of all documents?
Reading between the lines, Smith's action was intended to trigger a series of crucial events and collapse the time between them.
- cut through the finger pointing between Trump's legal minions
- put Trump the individual ultimately on the spot by forcing him to designate ONE lawyer as THE single point of representation for any affidavit filed about the final status of a search and return of subpoenaed documents
- if none of the lawyers can agree who should drink from that poison cup and risk criminal prosecution and disbarment for signing off on "completion", Smith would punch through Trump's cloud of legal clowns and ultimately force HIM to sign any such attestation
- Smith would then have "pierced the veil" of incompetence and obfuscation and allow analysis of potential security exposure to conclude to inform indictments and prosecution strategy
Smith's ask seems perfectly reasonable under general law and absolutely seems reasonable given the behavior of Trump since leaving office.
It is also worth remembering that Trump is under investigation for MANY actions. Illegally taking national security documents from the White House is only ONE of them. However, ending Trump's pollution of the political space will only take ONE key conviction in ONE case to achieve the two most important results -- ensuring he cannot become President again and thereby forcing the Republican Party to accept that reality and attempt a return to sanity. The laws around handling top-secret national security documents are very clear and the penalties for violating them have decades of clear precedent. Trump the President actually signed legislation that TOUGHENED penalties specifically for "unauthorized removal and retention of classified documents or material" (see section 202).
https://www.congress.gov/bill/115th-congress/senate-bill/139/textTrump the President intended to use those penalties to go after Hillary Clinton for her email server but charges were never brought by Trump's DOJ. Trump's DOJ was certainly tough on a citizen, Reality Winner, who mishandled confidential information by leaking information about Russian election interference in 2016 to the press. She was sentenced to 63 months in jail and was incarcerated between August 2018 and June 2021 before being transferred to a transitional facility.
The case against Trump for illegally removing top-secret national security documents from appropriate facilities then REPEATEDLY refusing to return all such documents even under subpoena might be small potatoes in the larger scheme of his crimes against America but the case has two key merits in the larger picture. It is likely the easiest case to prove in front of a grand jury to obtain an indictment and it is likely the easiest case to present to a criminal jury to convict him. It may be the equivalent of nailing Al Capone for tax evasion but it is likely the fastest path to achieving the most important goals. Once those are achieved, prosecutors will have all the time in the world to pursue the more complicated charges around insurrection and a lifetime of tax evasion crimes. In the mean time, Judge Howell should have acted upon the DOJ request and imposed a contempt charge on Trump and his entire team. He is light years beyond deserving any deference from the DOJ or the courts.
WTH
