THE SHADOW KNOWS

A lotta decades ago, some of us entertained ourselves by listening to the radio. One of my favorite programs was an ingenious fantasy entitled “The Shadow,” the hero of which brought crooks to heel via "The hypnotic power to cloud men's minds so they cannot see him." 

Today we have a live anti-hero who apparently bears a similar talent: He apparently has The hypnotic power to cloud men's minds so they cannot see the truth.

Let’s look at the latest issue that has the wingnuts in a frenzy: The Mar-a-Lago search warrant.  Here are some of the clouds issued by the Trump fog-machine:

i)"There was a standing order. Everything that left the White House and shipped to my home in Florida was declassified by me."

and

ii) "This is a witchhunt. I have no classified material."

and

iii) A written statement given to the government by a Trump lawyer before the search: "All classified documents have been returned."

It is not surprising that every statement cited above, made by Trump or his lawyer, was absolutely false.

He did not declassify all the documents sent to his home in Florida. We know that because in executing the search warrant the FBI found numerous grades of classified documents, including some so sensitive they may be viewed only in specially sealed rooms. None had been de-classified in accordance with appropriate procedures.

So the statements made by Trump and his legal team were lies. (And the written assurance given to the government was a criminal act. In my view, not only is the lawyer who made that statement guilty of a crime, but Trump, knowing of his lawyer's representation to the government, and not promptly withdrawing it, has adopted that statement, and he too is indictable under 18 USC 1001.

But all of this discussion about classified documents is classic Trumpian fog. It’s all bullshit intended to cloud the public mind. While the classification of the documents taken by the FBI in executing the warrant may give an indication of how serious Tump’s criminal activity was, it has nothing to do with the question of whether Trump’s possession of the documents was criminal. Whether a seized document was classified or not, has nothing to do with the propriety of the court-ordered search warrant.

While the government is working on the submission of a redacted affidavit supporting the search warrant, we know from the face of the warrant already made public that the probable cause that a crime had been committed and the probable cause that evidence of the crime would be found in Mar-a-Lago– was not based on the criminal statutes involving classified documents. The criminal conduct involved in the granting of the search warrant had to do with Trump’s theft of government records, classified or not.

Let's start with the Presidential Records Act, 44 U.S. Code, Sections 2201-2209,  passed during the Reagan administration in 1981, and amended during the Obama administration in 2014. The PRA:

1. Establishes public ownership of all presidential records,

2. Places the responsibility for the custody and management of such records with the president, and, 

3. Establishes that presidential records automatically transfer into the legal custody of the archivist as soon as the president leaves office."

Bottom line: all of the records seized by the FBI's execution of the search warrant had been stolen by Trump. They didn't belong to him, they belonged to the United States government, and it was his duty to see to it that they were delivered to the National Archivist on January 20, 2021. 

In other words, whether the records bore the title "classified", "top-secret" or any similar phrase, is totally irrelevant. None of the statutes cited in the warrant mention the word “classified”, or any such lingo. The fact is, Trump stole government property, and then obfuscated and grifted in the effort to obstruct the government's recovery of the material. In doing it doing so, he violated the criminal statutes cited on the face of the warrant.

The warrant lists three criminal statutes. The judge who issued the warrant found there was probable cause to believe that Trump was guilty of violating one or more of those statutes, and there was probable cause to believe that evidence of that crime was to be found at Trump’s residence.

The three criminal statutes that appear on the face of the warrant are as follows: 

The Espionage Act: 18 US Code, Section 793 (e) and (f):

"Whoever having unauthorized possession of … any document… which information the possessor has reason to believe could be used… to the advantage of any foreign nation, willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it, or,\ through gross negligence permits the same to be removed from its proper place of custody,…or 

(f) having knowledge that the same has been illegally removed… fails to make prompt report of such loss… shall be …imprisoned not more than 10 years… ."

18 US Code, Section 1519:

Whoever knowingly conceals… any record… with the intent to impede, obstruct… the investigation or the proper administration of any matter within the jurisdiction of any department or agency of the United States [including the National Archivist]… shall be… Imprisoned not more than 20 years…"

18 United States Code, Section 2071:

(a) Whoever willfully and unlawfully conceals, removes, or… takes and carries away any record… paper, document ...  deposited… in any public office, or with any… public officer of the United States. shall be …imprisoned not more than three years … .

(b) Whoever having the custody of any such record… document, paper, ... willfully and unlawfully conceals or destroys the same… shall… be imprisoned for not more than three years and be disqualified from holding any office under the United States … ."

 Let's face it. There is no doubt our former president is a thief and a liar,-- a scoundrel who places his own best interests (whatever they may be) above the interests of the United States of America, his duties under the Constitution, and his oath of office.

Article II, Section 3, of the Constitution requires the president to “take care that the laws be faithfully executed." Time and time again Trump has mocked that command, and further, has succeeded in clouding the minds of his followers on the subject of his own violation of our criminal laws, as well as his evidence-free preposterous claims he won the last election.

And once again the only question remaining is whether the Department of Justice dares risk an "uprising" by the beclouded Trumpian extreme right.

When you add this nefarious theft to the clutch of Trump's January 6 crimes, I continue to believe that we have no choice but to face the music. If we do not indict this criminal, then we have lost our national culture, our Constitution,  and our democracy.

A bientot.

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