Donald Trump seems to collect people who push extreme legal theories, and in the days before January 6, 2021, a number of them were swarming around Vice-President Mike Pence. Their big idea was that Pence could use his position presiding over a joint session of Congress to toss out the electoral votes of several states—and that to do so would be totally constitutional. To Pence, it didn’t add up. The American Revolution had been fought to get rid of a king, he wrote in his memoir: “The last thing the framers of the Constitution would have intended would be to confer unchecked authority on one individual.”
Trump has a different view. He made that clear last Tuesday, after appearing in federal court in Miami for his arraignment on thirty-one felony charges of unauthorized retention of documents “relating to the national defense,” in violation of the Espionage Act of 1917, and six additional felony charges alleging that he conspired to obstruct justice, and concealed and lied about the documents. (The Espionage Act, despite its name, is not confined to spying and is often used in cases involving government secrets.) The indictment was brought by the special counsel Jack Smith. Many of the documents were marked classified; many were kept in cardboard boxes that were moved around among a ballroom, a bathroom, and a closet at Trump’s Mar-a-Lago club. He pleaded not guilty, calling the indictment “the Boxes Hoax,” and blaming it on President Biden and “his closest thugs, misfits, and Marxists.” The root of the hoax, to Trump’s mind, is the prosecutors’ unwillingness to acknowledge the power of Trump.
“The President enjoys unconstrained authority to make decisions regarding disposal of documents,” he told supporters at his Bedminster golf club, hours after his arraignment. By way of explanation for this assertion of power, which would go well beyond a President’s ability to classify and declassify documents, he gave a garbled rendition of a 2010 lawsuit in which Judicial Watch, a conservative activist group, sued the National Archives and Records Administration (NARA) in an attempt to force it to gain possession of audiocassettes of Bill Clinton speaking with a historian while he was President, which he had kept. (Trump calls this “the Clinton Socks Case,” because the cassettes were kept for a time in Clinton’s sock drawer; Socks was also the name of the Clintons’ cat, who was not involved.) The case wasn’t about classified materials but about the distinction between personal and Presidential records, and the extent to which the Presidential Records Act allows the President to draw that line. The judge ruled against Judicial Watch.
One would think that this decision—which involved very different circumstances, was limited in scope, and never reached the Supreme Court—would not be of much use to Trump. How could he assert that documents marked “Top Secret” which concerned the “military capabilities of a foreign country” (cited in count seventeen of the indictment) or “nuclear capabilities” (count five) are personal records? Those documents were generated by other executive agencies, according to the indictment, not during a cozy conversation with a historian.
Trump’s answer is brazen and breathtaking: he claims that if he just calls a document personal—whether it plausibly is or is not—no one can even question him about it. “Whatever documents a President decides to take with him, he has the right,” Trump said. “It’s an absolute right. This is the law.” It is not the law, and it would be absurd to think that the P.R.A., which was enacted after Watergate precisely to limit a President’s ability to hold on to official records, is actually a license to loot. By his own reasoning, Trump could take the original parchment Constitution, stash it in one of his boxes, and walk away with it.
Trump seemed to expect that the Bedminster crowd would cheer his boasts about having the power to, in effect, lie to NARA and to the country, and many people did. In polls, he leads the field for the G.O.P. Presidential nomination by a margin that has only grown wider since his previous indictment, in April, in New York, on state charges related to an alleged hush-money payment. (Trump pleaded not guilty.) Primary season is looking to take the form of a legal demolition derby, with another indictment expected soon in Georgia, this one involving alleged efforts by Trump to overturn the 2020 election results; Smith may also be working on additional federal charges against Trump, related to January 6th. The cases may not be resolved by Election Day, 2024. A felony conviction would not preclude Trump’s becoming President again.
The question of Presidential power does factor into the documents case. Smith may have turned to the Espionage Act in part because, perhaps surprisingly, a prosecutor does not need to show that national-defense information held without authorization was ever classified—thus avoiding a fight over which of the documents are still classified. (According to the indictment, there are recordings of Trump saying that a number of them were not declassified.) The statute itself is disturbingly vague as to what a prosecutor does need to show, beyond that a defendant should have been aware that such information “could be used to the injury of the United States or to the advantage of any foreign nation.” Also, according to current case law, it should be closely held by the government.
Trump’s retention of the documents and his careless storage of them—in a club that hosted thousands of guests—appear to easily clear the bar for an Espionage Act conviction. (The obstruction-related charges also look strong: Trump does not seem to have been subtle in his box-shuffling scheme.) But it is true that the Espionage Act bar is low, and, as a result, the law has been abused, before and after various amendments. It was the means of prosecuting pacifists during the First World War; Daniel Ellsberg, who leaked the Pentagon Papers, and died last week; and Reality Winner, a National Security Agency translator who leaked a single classified report about Russian election interference in 2018—during the Trump Administration. She was sentenced to more than five years in prison.
Trump’s trials thus may offer an opportunity to think about how we police secrecy. At the same time, Trump is already pushing his supporters to accept a dangerous interpretation of Presidential power—and of his personal power, which in his mind may be the same thing. We appear to be headed toward a period in American politics that is particularly unconstrained and unchecked, in ways that the Framers, as Pence would put it, might never have intended but would certainly have feared. 
Trump’s Brazen and Breathtaking Defense
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