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Culture War Roundup for the week of June 5, 2023

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I've been ruminating on a question about Trump's prosecution. One of the common arguments I've come across is that prosecuting Trump is improper because it's just political retaliation falsely disguised as a neutral and dispassionate application of the law. In support of this argument, you could cite the fact that the apparent mishandling of government records occurs fairly regularly by similarly-positioned politicians (Clinton, Biden, Pence, etc.) and yet its enforcement appears to be selectively doled out. This is potentially also supported by the fact that, speeding tickets notwithstanding, no other US president (former or sitting) has ever been charged for anything before. The fact that US institutions chose to break such a long-standing norm at this particular moment seems a bit too much of a coincidence to believe it was done with honest motivations.

Assuming all of the above is true, are there any limiting principles? Until something happens for the first time, it remains by definition "unprecedented", so if your rule is based solely on precedence then nothing would ever be allowed to happen unless it has already happened before which doesn't seem workable. Another consideration also is just because something hasn't happened for a very a long time, it doesn't mean it accidentally created an inviolable precedent that can never be broken now. For example, the crime of piracy is one of the few specifically mentioned in the Constitution and it used to be regularly prosecuted way back in the day but there was a very long lull before the feds dusted it off to go after some Somalis.

I don't think anyone would agree that a permanent bar was created, because that would bestow elected officials and political candidates the extra benefit of potentially perpetual & absolute immunity from all criminal liability, including for conduct that happens after they leave office. In its most absurd implementation, this hypothetical system would allow any criminal a "get out of jail" card just by declaring election candidacy.

So if the longstanding norm against prosecution can indeed be broken, then under which circumstances? For Trump's supporters, I suppose one possible answer is that he has been the target of such a relentless and unprecedented avalanche of (presumably bad faith) lawfare — Russiagate, impeachments, etc. — that trust in the system has been depleted to the point that all action against him should be assumed to be ill-disguised political retaliation as a rule. Assuming that's true, then what? Should the rule be that other politicians can be prosecuted but that Trump should have a carve-out in consideration of the unusually aggressive persecution he had to endure? If so, how serious of a crime would this cover? How long should this immunity last for? Should everyone who faces relentless persecution be afforded similar benefits?

I think charging a candidate for public office (excepting very very serious crimes) is one of those holy shit don’t do that things for me that I think the should be a very high bar for doing that. It shouldn’t be just missing documents, but they’d better be very important documents and he better be trying to sell them or something equally bad. The reason I say this is that the graveyard of Republican governments is full of the bones of countries that started doing exactly this. In fact, prosecuting and law faring the opposition is very nearly a hallmark of a failed democracy.

I think he very well could have had classified information. I just think that if those aren’t very important secrets to keep, that this isn’t really the reason to go after him. And one thing I’d point out as evidence that these aren’t important secrets is that the government waited nearly a year to bother searching for them. If these were nuclear secrets, military readiness documents, invasion plans for our enemy states, lists of agents or anything of that sort the idea of waiting nearly a year and alerting Trump that he had something that valuable (which he could sell or give out) seems ludicrously incompetent. If the CIA believes I have the GPS coordinates of a nuclear silo, it’s only a matter of hours before I’m detained and my house ransacked and every electronic device I own confiscated. They aren’t going to ask my lawyers nicely no matter who I am.

The other explanation for why they took so long to get the documents back is precisely because they wanted to proceed as gingerly as possible. They escalated only after the year-long tactic of "please please please give back the documents" didn't work.

I assumed the issue away for purpose of this post, but I would love to see someone try and defend Trump's obstructionary maneuvering here.

But it still doesn’t seem to make sense as a logical whole. If the documents are such that revealing them to outsiders is a national security matter, then no matter who holds them, it’s absolutely essential that they get them back as quickly as possible. If the documents were such that the government was absolutely okay with almost a whole year of not knowing whether they were being exposed to the wrong sorts of people (also NB: they knew the Russians were gearing up for an invasion, and suspected Trump had some ties to the Kremlin), these things could not have been the kinds of secrets that the government and democrats want the public to think they are. If some secrets get out — technical specs for weapons, a report on nuclear weapons, secret agents, military readiness and training — it could well be an existential threat. Even if the government wants to proceed “gently”, it would still be quite unwilling to leave them unsecured just to run everything by lawyers and through lawyers.

What seems to exist here is a form of Motte and Bailey. When the opponents of Trump want this to be a big deal they try to imply that these documents were very important state secrets. When they’re trying to get them, they’re acting like they don’t think they’re important enough to be worried about, and are perfectly content to disclose to Trump through lawyers that these are super important documents and “pretty please with sugar and a cherry on top can we get them back,” with no date attached.

There's also a big range of actions that can be taken between 'ask nicely' and prosecution. A good middle ground could be do the raid and then not take things further after retrieval.