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Wednesday, November 30, 2022

Document dump turns toxic for Trump

There’s a scene in the Robert DeNiro film, “Goodfellas,” where second-tier gangster Henry Hill, just out of prison, searches his home for drugs. “Where’s the stuff that I left, Karen?” he asks his wife. Karen’s reply: “I flushed it down the toilet” — some $60,000 worth of cocaine flushed to keep the evidence from the FBI. “They would have found it, I swear to you Henry!”

That scene came to mind last week with the news — in a tease from New York Times reporter Maggie HabermanMaggie Lindsy HabermanRubio on White House records at Mar-a-Lago: ‘It’s not a crime, I don’t believe’ Democrats in a fury as Trump docs revive trauma of Clinton emails Clinton hawks ‘But Her Emails’ hats after report on Trump documents MORE for her forthcoming book about Donald TrumpDonald TrumpRubio on White House records at Mar-a-Lago: ‘It’s not a crime, I don’t believe’ Overnight Health Care — DC ending mask, vaccine mandates On The Money — Biden’s inflation boogeymen MORE — that “White House residence staff periodically found papers had clogged a toilet, leaving staff believing Trump had flushed material he’d ripped into pieces.”

That’s one way to keep incriminating materials from the National Archives. In the Trump White House, even the water closets may have been crime scenes.

The former president’s Goodfellas-style habit apparently carried over from his days as a businessman; he reportedly tore up displeasing papers as casually as one-ply bathroom tissue. In the White House, West Wing staffers mindful of his obligations under the Presidential Records Act often picked off the floor the shredded refuse and taped it, like Humpty Dumpty, back together again.

Trump developed adjunct techniques. Burn bags apparently were one. Former Trump aide Omarosa Manigault NewmanOmarosa Manigault NewmanOmarosa says Trump ‘loved to tear up’ White House documents Omarosa Manigault Newman: Trump may not ‘even be healthy enough’ to run in 2024 The Memo: Omarosa beats Trump, potentially opening flood gates MORE even claimed in her 2018 book about the Trump White House that she saw him “put a note in his mouth.” She was shocked to see a known germophobe “chewing and swallowing the paper. It must have been something very, very sensitive.”

Evidently, there was more than a mouthful of secrets to be swallowed in the head-clogging incidents that Haberman reports. Watergate’s infamous 18-minute gap in Nixon’s White House tapes looks like a training exercise.

Trump, of course, calls it all “fake news.” But when you’re denying flushing evidence down the loo, you’re probably not winning the narrative.

Americans may remember his 2016 statements about Hillary ClintonHillary Diane Rodham ClintonRubio on White House records at Mar-a-Lago: ‘It’s not a crime, I don’t believe’ Anthony Weiner to make first cable news appearance since incarceration on Hannity Durham alleges cyber analysts ‘exploited’ access to Trump White House server MORE: “People who have nothing to hide don’t . . . destroy evidence to keep it from being publicly archived as required under federal law.” He called her conduct “disqualifying.”

Oops. Hypocrisy and an inculpatory admission that he knew the law all in one sound bite — not to mention the perfect quote for his 2024 rivals’ TV ads.

Will Trump face charges for destroying documents? Per 18 U.S.C. § 2017, anyone who “willfully and unlawfully … destroys … any record … in any public office” can be subject to a fine and up to three years in prison. (For each act!) Oh, and the punishment also includes disqualification “from holding any office under the United States.”

But there may be obstacles in charging that crime alone. One reality: Obliterated documents can’t be introduced at trial to prove that they were actually government records, rather than, say, private letters from a porn star.

Tough to establish a murder without the body.

Even as to documents taped back together, there’s a significant pragmatic risk. How likely are 12 jurors to agree unanimously to convict Trump of what may strike one or more as a petty offense?

Better to consolidate any such charges in an indictment alleging a criminal enterprise that encompasses many offenses, including a pattern of obstructing justice. Pardons like the ones Trump dangled for insurrectionists last month in Texas, to silence potential witnesses against him, would fit well. Under the Supreme Court ruling in Tanner v. United States, 18 USC §371, the crime of defrauding the United States includes “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.”

Last week also brought news of Trump improperly storing boxes of official records at Mar-a-Lago after his term ended. Officials from the National Archives spent months attempting to retrieve the records, which reportedly included papers classified “top secret.” As president, Trump was notoriously lax about protecting the country’s secrets.

In this case, the relevant statute is 18 U.S.C. § 1924, which makes it a crime to improperly remove classified materials from sites like the White House.

Trump, however, could theoretically defend his actions by saying something like, ‘Mar-a-Lago was the Southern White House when I was in office, and my aides failed to send the documents back,’ or ‘I declassified the papers while still president.

If prosecutors have plausible answers to those defenses, it would be smart, as with alleged §2071 violations, to charge any National Security Act violation as part of a broader indictment. Even if the NSA-violation counts ultimately fell short, the evidence would portray for the jury someone who failed to take the country’s gravest responsibilities seriously and who habitually pointed his finger at others.

Neither character type appeals to jurors, any more than someone — like the wife in “Goodfellas” — flushing cocaine down the pipes. Likewise, a jury’s disgust is predictable for a man who left it to the help to unclog a commode that overflowed with … well … whatever he put there.

Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending  American Democracy

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