Former president Donald Trump began his first prepared remarks following his arraignment on federal criminal charges on Tuesday the way he so often does: with dishonesty and hyperbole.
“Today,” he said, “we witness the most evil and heinous abuse of power in the history of our country. Very sad thing to watch. A corrupt sitting president had his top political opponent arrested on fake and fabricated charges of which he and numerous other presidents would be guilty.”
As exhaustingly familiar as this patter is to outside observers, it remains energizing to some substantial portion of his base. President Biden is corrupt! they’re invited to think. This whole thing is unfair!
So by the time Trump gets into the next phase of his speech — the criminal defendant’s explanation of the legal failings of the case against him — they’re already nodding along. He ropes them in with the cozy familiarity of “everyone is out to get me, by which I mean us” and then outlines the scattershot arguments they can deploy in his defense. The indictment details numerous examples of Trump allegedly seeking to avoid turning over documents? Well: Presidential Records Act! Check and mate.
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.”
In general, this is why criminal defendants are encouraged not to go around offering comments on their cases; those words can and will be used against them in a court of law, as the saying goes. This particular line from Trump isn’t novel and may not itself doom his defense, but it almost certainly doesn’t help.
But perhaps because the public case against Trump is so robust or perhaps because Trump would be inclined to respond to any indictment in the same way, he finds it useful to use the indictment not as a moment to hunker down and defend himself but to bolster his political position. He followed the arraignment on Tuesday with a campaign-style stop at a Cuban restaurant in Miami and then closed out that day with his campaign-style speech. It is not a normal approach.
That’s because there’s another way in which this entirely unprecedented situation is unprecedented: Trump’s freedom may be contingent not on the success of his trial but of his campaign.
This isn’t normally the case, even for elected officials. There are no boundaries in place to block the indictment or incarceration of sitting mayors or members of Congress or state legislators. It’s only at the presidential level where there exist prohibitions against indictment or prosecution.
In an October 2000 memo, the Justice Department’s Office of Legal Counsel reinforced a 1973 determination that presidents shouldn’t face such sanctions.
“The Department of Justice concluded that the indictment and criminal prosecution of a sitting President would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties,” it concluded, “and would thus violate the constitutional separation of powers.”
Ergo, as long as Trump is president, he’s not getting prosecuted, barring some unlikely shift in the Justice Department’s position. Or maybe he could even pardon himself for his alleged crimes, something he’s explored in the past.
Trump and his ever-evolving cadre of attorneys is adept at establishing roadblocks to legal processes; the odds that a trial concludes before Nov. 5, 2024, are slim. So now put yourself in Trump’s shoes: Which is easier, winning the presidency or winning in court? More importantly, over which process do you yourself have more control?
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.
He pointed out that there was a photo in the indictment “where someone, not me — I wonder who it might have been! — dumped one of the very neatly arranged boxes all over the floor.” As the Atlantic’s David Graham pointed out, it would seem to be pretty unhelpful to suggest that these boxes of documents were available for an unknown number of people to molest. But that’s only in the realm of the legal issue, not the political one. In the political realm, the idea is that the photos were maybe staged or somehow presented to make him unfairly look bad … because his enemies — America’s enemies! — are out to get him.
Over the course of his Bedminster speech, Trump deployed now-familiar apocalyptic rhetoric about the importance of the 2024 contest. It’s the end times, if you listen to Trump, and only he can avert national disaster. America needs him because the existing power structures are so corrupt — so corrupt that they are contriving legal charges against him to keep him out of power.
It’s all overheated and dishonest, and it is all fundamentally self-serving. Trump needs his base to think he’s their only savior because he very much needs the protection afforded by the white walls of 1600 Pennsylvania Avenue. Instead of tearing down the government, Trump wants to be elected to seek shelter within it.
Trump’s lawyers will mount a legal defense. But his most reliable defense against the charges and against incarceration is his election. His political fight is, in every meaningful sense, his legal one.