THE HUTCHINSON REPORT: The case for prosecuting Donald Trump

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By Earl Ofari Hutchinson

Contributing Columnist

“Most Republicans including me, believes when it comes to Trump, there is no law. It’s all about getting him. There is a double standard when it comes to Trump. And I’ll say this, if there is a prosecution of Donald Trump for mishandling classified information after the Clinton debacle … there will be riots in the streets”

South Carolina Republican Sen. Lindsey Graham was justifiably pilloried for seeming to call for riots if Trump is indicted for mishandling and pilfering classified government documents.

An unrepentant Graham didn’t back down. A few days later he told another interviewer, “What I tried to do was state the obvious.”

This is the first in a two-part series examining the prospect of indicting former President Donald Trump on criminal charges.

Graham’s full-throated defense of Trump was no surprise. Despite some occasional jabs at Trump, he has long been one of the most loyalists of Trump’s water carriers.

Graham’s inflammatory and nonsensical quip of “state the obvious” about riots underscored just how worried many of Trump’s loyalists were that there was a real possibility that Trump could be hauled into a criminal court docket. The reasons for worry were that:

  • Trump was in unauthorized possession of national defense information, namely properly marked classified documents.
  • He was put on notice by the U.S. Government that he was not permitted to retain those documents at Mar-a-Lago.
  • He continued to maintain possession of the documents (and allegedly undertook efforts to conceal them in different places throughout the property) up until the FBI finally executed a search warrant last month.

Trump’s fear about a charge finally being brought against him began before the raid and the documents seizure. There was a growing consensus among many legal experts, former prosecutors and many in the media that there was robust evidence that Trump could be brought up on multiple charges as a result of his inflaming the mob in the Jan. 6, 2021, Capitol takeover.

The testimony before the Select House Committee of a top aide to Trump’s former chief of staff, Mark Meadows that Trump was the ringmaster of the violence seemed to resonate with a wide swatch of the public. That included many Republicans and more than a few self-proclaimed Trump backers.

The one charge that kept repeatedly popping up among talk of a Trump prosecution was that Trump violated Title 18 of the U.S. Code, Section 2383 — the crime of “rebellion or insurrection” against the U.S. by egging on the mob.

The other crimes that Trump could be charged with were frequently cited. They included: obstruction of Congress, obstruction of justice and witness tampering. These were just add-ons to the litany of sex, tax, and business frauds charges that were bandied about for years before the Jan. 6 debacle that could propel Trump into a criminal court.

Trump’s loud fallback argument was that he was immune from prosecution because as president the mantle of “executive privilege” was tightly wrapped around him. Trump first tossed out the executive shield line when Special Counsel Robert Mueller conducted a year-long investigation of Trump in 2017 for alleged involvement in Russia’s tampering with the 2016 presidential elections.

Trump dredged up the executive privilege defense again when the Select House Committee investigating the Jan. 6, 2021, attack on the U.S. Capitol asked him to turn over White House documents that could have shed more light on his role in the insurrection.

While in the White House, Trump had the greatest shield of all to insulate him from a possible indictment. No sitting president has ever been indicted simply because it would cause monumental political and legal havoc and paralyze the chief executive, and by extension, the government.

That didn’t mean it couldn’t happen; even traditions can be broken.

When FBI agents in their raid on Trump’s home Aug. 8, grabbed classified documents that Trump had pilfered from the White House, Trump again howled he had a right to the documents. Though an ex-president, he still invoked the legal shield of the presidency.

Trump was wrong on all counts. The documents weren’t his private property. They belonged to the government. The Presidential Records Act had long since made that clear. Their place was not at Mar-a-Lago but in the National Archives and Records Administration. That is where all past presidents deposited the documents when their White House tenure ended.

There was one loophole that Trump would try to exploit. In 1977 the U.S. Supreme Court gave ex-presidents the right to lay claim to some private communications.

It was a hard stretch for Trump to prove that these categories of White House documents — state secrets, presidential communications and “deliberative” communications within agencies — were solely private communications that were penned by him for his own personal and private use. He’d try though.

Still, with polls in August showing that half of Americans agreed that Trump should be charged in this case, this was as close to coming to a mass public consensus that Trump had committed a criminal act than in any of the other cases against him. Time will tell whether Trump will finally meet his downfall.

Earl Ofari Hutchinson is an author and political analyst. His forthcoming book is “The Midterms: Why They Are So Important and So Ignored” (Middle Passage Press). He also is the host of the weekly Earl Ofari Hutchinson Show at 9 a.m. Saturday on KPFK 90.7 FM Los Angeles and the Pacifica Network.


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