There are certain types of criminal cases where the target operation is so organized and difficult to penetrate that police and prosecutors end up utilizing a patchwork of lesser crimes in an attempt to arrive at something approximating the level of punishment deserved, thus serving the same function. Al Capone’s tax fraud conviction would be the most extreme example, but similar situations play out to this day.
Speaking of patchwork… it appears clear that if DOJ wanted to prosecute Trump for doing “something” in flagrant violation of federal law, beyond attempting to overthrow the election, it has a ready-made case. The National Archives confirmed a long-rumored practice yesterday. The Archives has received some documents that Trump ripped to shreds. Apparently, Trump never wanted these documents to reach the public and Trump was never particularly respectful of laws. Later, many of the documents would be meticulously Scotch-taped back together by some respectable White House aides, perhaps trying to protect him from himself, but not all of them.
In a statement the National Archives said (by way of the Washington Post):
“White House records management officials during the Trump Administration recovered and taped together some of the torn-up records. These were turned over to the National Archives at the end of the Trump Administration, along with a number of torn-up records that had not been reconstructed by the White House. The Presidential Records Act requires that all records created by presidents be turned over to the National Archives at the end of their administrations.”
The Public Records Act isn’t satisfied if one backs a truck up filled with shredded paper, bundled together like hay. It means what it says and could be an easy avenue to criminal liability, again – according to the Post:
Stephen Gillers, a New York University law professor and constitutional scholar, said White House documents torn up by Trump are clearly the property of the government under the Presidential Records Act.
“So destroying them could be a crime under several statutes that make it a crime to destroy government property if that was the intent of the defendant,” Gillers said. “A president does not own the records generated by his own administration. The definition of presidential records is broad. Trump’s own notes to himself could qualify and destroying them could be the criminal destruction of government property.”
So there you have it, an almost self-proving crime, given that Trump was the only one ripping up paper, and people witnessed him doing so. The problem here, of course, is that it would give Trump yet another reason to cry victim, that they’re only prosecuting him under the statute because they couldn’t get anything worse on him when it might be the other way around. Little crimes like this can also come in handy when bargaining with prosecutors; “You plead guilty to XY and we will drop “Z” in the interests of the nation.
Given that Trump all but admitted that he wanted the election overthrown Sunday night, it would seem as though prosecutors would need not resort to violations of the Presidential Records Act, to punish Trump.
All of this assumes having a Justice Department interested in prosecuting the law, of course.
Jason Miciak is a political writer, features writer, author, and attorney. He is originally from Canada but grew up in the Pacific Northwest as a dual Canadian-American citizen, which he grows increasingly thankful for every day. He now enjoys life as a single dad, writing from the beaches of the Gulf Coast, getting advice from his beloved daughter and teammate. He is very much the dreamy mystic that cannot add and loves dogs more than most people. He also likes studying cooking, theoretical physics, cosmology, and quantum mechanics. He likes pizza.
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