Donald Trump did everything he possibly could to get indicted.
That, at least, is the primary takeaway from a damning, hilarious report from The Washington Post on Thursday. According to the Post’s Josh Dawsey and Jacqueline Alemany, one of Trump’s lawyers, Christopher Kise, approached the former president with a proposal last fall, several months after the Department of Justice opened an investigation into his handling of classified documents: Just offer to give them back.
This would have almost certainly caused the Justice Department to drop its investigation—or, at the very least, it would make his arrest significantly less likely. Trump’s actions were wantonly criminal, of course. Had anyone else absconded with information about, say, the U.S. nuclear arsenal or its plans for a potential strike on Iran, they would undoubtedly have been prosecuted. But bringing federal charges against a former president is unprecedented. Far from the “witch hunt” that Donald Trump and his allies have described, it is abundantly clear that the DOJ really didn’t want to charge him and that it almost certainly would have declined to do so had he taken Kise’s advice. “It was a totally unforced error,” one person “close to Trump” told the Post. “We didn’t have to be here.”
Despite the fact that it neatly encompasses many of the most salient arguments for why Donald Trump should not return to the White House, both Democrats and Republicans have been reluctant to press their case. Democrats are worried about “politicizing” the investigation, even though Trump himself is relentlessly doing this, characterizing it as a fascistic plot to root out a political rival straight out of a “banana republic.” Republicans, meanwhile, are afraid of Donald Trump and his supporters and want to stay out of the firing line of both. And yet the fact that Trump made his prosecution inevitable is an opportunity for scared Democrats and scared Republicans alike to present the former president as reckless and stupid in a disqualifying way.
Why Trump refused to hand over the numerous classified documents in his possession isn’t entirely clear. The prosecution may have been inevitable anyway because handing back the documents would have required Trump to admit—even tacitly—that he had done something wrong, which is simply not something he does. In any case, it’s clear that he was under the influence of more “pugilistic” figures on his legal team as well as Judicial Watch’s Tom Fitton, all of whom advised him to stonewall the DOJ.
Fitton’s involvement is particularly funny. Judicial Watch filed a number of lawsuits related to Hillary Clinton’s use of a private email server—an instance that isn’t really analogous to (or close to as damaging as, from a national security perspective) Trump’s retention of classified information. (Additionally, one of the more persuasive arguments for why Clinton was using a private email server was to avoid scrutiny from Judicial Watch and other conservative groups.) Nevertheless, it’s clear that Trump wasn’t looking for a way out of the investigation but for an excuse to do what he wanted, which was to continue storing America’s nuclear secrets in an unsecured bathroom in southern Florida.
In any case, what is clear is that far from being a “witch hunt,” Trump’s prosecution was brought on by his own recklessness and stupidity. Whether he wanted to be prosecuted is unclear. It’s possible that he did, thinking it would be good for him politically—though he is currently facing several years in prison. (That said, even if convicted it is exceedingly unlikely that a former president would be put behind bars.)
Trump has turned the indictment into a fundraising opportunity, but the idea that it would dramatically help him in the primaries, where he was already leading consistently, seems far-fetched. Additionally the idea that it would aid him in a general election is untested, at best—half of Americans agree he should have been indicted per an ABC/Ispos poll released last week. It’s also possible that he simply didn’t think the Department of Justice would prosecute him, either out of arrogance, bad legal advice or, more likely, both.
And yet, Trump’s failure to do the simple thing presents a clear argument against him—one that skirts the actual case itself. Trump will face trial because he refused to return classified documents he shouldn’t have had—and that he knew he had. He was given every opportunity to return those documents but chose not to. Everything since flows from that (postpresidential) decision.
This all gets directly at Trump’s core recklessness. For Democrats and independents, it’s a reminder of his erratic temperament, stupidity, and general tendency to spend most of his time stepping on rakes. For Republicans, it’s a reminder of Trump’s tendency toward own goals and scandal, all of which imperil his political project. In both instances, you have a clear argument: Trump made this happen. Not the Justice Department. Not Biden. But Trump. It’s not as good as making the larger case about his handling of classified information—that he endangered national security for no good reason—but it’s a start.
