Trump's Indictment by Jack Smith Challenges the Lockean Rule of Law

Recently, I was at the Gerald R. Ford Presidential Museum in Grand Rapids.  On display was Ford's Presidential Proclamation 4311, issued on September 8, 1974, granting a full and unconditional pardon to Richard Nixon.  Here's the text as displayed in the Ford Museum:

Richard Nixon became the thirty-seventh President of the United States on January 20, 1969 and was reelected in 1972 for a second term by the electors of forty-nine of the fifty states. His term in office continued until his resignation on August 9, 1974.

Pursuant to resolutions of the House of Representatives, its Committee on the Judiciary conducted an inquiry and investigation on the impeachment of the President extending over more than eight months. The hearings of the Committee and its deliberations, which received wide national publicity over television, radio, and in printed media, resulted in votes adverse to Richard Nixon on recommended Articles of Impeachment.

As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States. Whether or not he shall be so prosecuted depends on findings of the appropriate grand jury and on the discretion of the authorized prosecutor. Should an indictment ensue, the accused shall then be entitled to a fair trial by an impartial jury, as guaranteed to every individual by the Constitution.

It is believed that a trial of Richard Nixon, if it became necessary, could not fairly begin until a year or more has elapsed. In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.

Now, Therefore, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.

In Witness Whereof, I have hereunto set my hand this eighth day of September, in the year of our Lord nineteen hundred and seventy-four, and of the Independence of the United States of America the one hundred and ninety-ninth.

At the time, many people criticized Ford for this.  The unpopularity of this pardon was probably one of the reasons that Ford lost the presidential election in 1976 to Jimmy Carter.  

Some people said that in pardoning Nixon, Ford contradicted what he had said in his Inaugural Address, after Nixon's resignation allowed Vice President Ford to become President.  Ford had declared: "My fellow Americans, our long national nightmare is over.  Our Constitution works.  Our great republic is a government of laws and not of men.  Here, the people rule."  Thus, Ford appealed to a recurrent Lockean theme in American political thought: to protect the liberties of the people from the tyranny of arbitrary, absolute power, governmental activity must conform to the rule of law applied impartially and equally to all people.  As Locke said in the Second Treatise, the laws must "not be varied in particular Cases, but to have one Rule for Rich and Poor, for the Favorite at Court, and the Country Man at Plough" (sec. 142).  

But then didn't Ford violate this principle of equality under the law by pardoning Nixon so that he would not be "liable to possible indictment and trial for offenses against the United States"?  Of course, Ford was right that the Constitution gave him the "Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment" (Article II, Section 2).  Here the Constitution seemed to recognize that the Lockean rule of law had to be set aside in particular cases by the exercise of the Lockean prerogative power "to act according to discretion, for the public good, without the prescription of the Law, and sometimes even against it" (Second Treatise, sec. 160).  In Ford's case, he judged that "the prospects of bringing to trial a former President of the United States" would cause "prolonged and divisive debate," and that avoiding this by exercising the prerogative power in pardoning Nixon was for the public good.

In reading Proclamation 4311, it's good to see Ford's signature at the bottom, because this emphasizes that this pardon is a purely personal judgment of the President.

Following the example of Ford, should President Joe Biden pardon Donald Trump, and thus set aside the recent indictment of Trump by Special Prosecutor Jack Smith?  Should Biden do this because bringing to trial a former President of the United States will cause "prolonged and divisive debate" over the fairness of this trial that will not be for the public good?  The debate today will be even more divisive than it would have been in 1974, because unlike the case with Nixon, many Republicans today are saying that any criminal prosecution of the former President will be a purely partisan act by the Democrats and thus an abuse of power.  Or will it be good for the country to see, for the first time in American history, a former President on trial for federal criminal offenses, because this will vindicate the Lockean principle that no one is above the law?

Special Prosecutor Jack Smith filed his indictment of Trump--United States of America v. Donald J. Trump and Waltine Nauta--on Thursday, July 8, in the United States District Court for the Southern District of Florida.  Trump is charged with 37 counts.  31 counts against Trump are for "willful retention of national defense information" (in violation of the Espionage Act, Title 18, USC, Section 793[e]).  5 counts are against both Trump and his aide Waltine Nauta for "conspiracy to obstruct justice," "withholding a document or record," "corruptly concealing a document or record," "concealing a document in a federal investigation," and a "scheme to conceal."  The last 2 counts are against Trump and Nauta for "false statements and representations."  

In its "General Allegations," the Indictment gives a narrative of how Trump put at risk the national security of the United States by possessing classified documents (classified as either TOP SECRET, SECRET, or CONFIDENTIAL) after he had ceased to be president and thus no longer had legal access to these documents.

After he left the White House, he took many boxes of classified documents to his Mar-a-Largo Club in Palm Beach, Florida.  He stored these boxes in various locations at the Mar-a-Largo Club--on the stage of a ballroom, a bathroom, a shower, an office space, his bedroom, and a storage room.  The Indictment includes photographs of these boxes stacked up in these locations.  In many cases, these boxes were stored within easy reach of the thousands of visitors who milled about the Club.

                  Boxes of Documents at Mar-a-Largo Club Stacked on the Stage of a Ballroom

Trump also transported some of these documents to his Trump National Golf Club in Bedminster, New Jersey.  In July of 2021, Trump had an audio-recorded meeting at the Bedminster Club with four people, none of whom possessed a security clearance, and he showed them a "plan of attack" against some country that had been prepared for him by the Department of Defense.  He told these individuals that "this is secret information."  

Then there was this exchange (16):

TRUMP:  See as president I could have declassified it.

STAFFER:  Yeah.  [Laughter]

TRUMP:  Now I can't, you know, but this is still a secret.

STAFFER:  Yeah.  [Laughter]  Now we have a problem.

TRUMP:  Isn't that interesting?

This is perhaps the most stunning piece of evidence in the indictment.  In public, Trump has said that all the documents he had had been declassified.  But here he admits that his documents were still classified-"this is still a secret."

Beginning in May of 2021, the National Archives and Records Administration began demanding that he turn over his presidential records.  Beginning in the next month, they repeatedly warned Trump that if he did not comply, the matter would be turned over to the Department of Justice.  On January 17, 2022, Trump provided only15 boxes of documents to the National Archives, although it was known that many more boxes were being withheld.  On June 3, in response to a grand jury subpoena demanding the production of all classified documents, Trump's attorney provided to the FBI 38 more classified documents.  During this time, Trump told his lawyers that he didn't want to give up his classified documents and that they should be hidden from the FBI.  Trump told Nauta to move his boxes so that they could not be found.  On June 3, the Trump attorneys signed a certification that all of the classified documents had been given up, which was a false statement.

In July of 2022, the FBI and a grand jury obtained and reviewed surveillance video from the Mar-a-Lago Club showing Nauta moving boxes of documents to hide them.  On August 8, the FBI executed a search warrant authorizing them to search for and seize all documents with classification markings in Mar-a-Largo.  They found 102 classified documents.  17 were marked TOP SECRET.  54 were SECRET.  And 31 were CONFIDENTIAL. 

The Indictment quotes from the series of Executive Orders that establish the criteria for classified information.  Information is to be classified as TOP SECRET "if the unauthorized disclosure of that information reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority was able to identify or describe" (5).  

The Indictment provides a sample list of 31 documents marked TOP SECRET or SECRET with descriptions of the documents that include "concerning military capabilities of a foreign country," "concerning nuclear capabilities of a foreign country," and "concerning nuclear weaponry of the United States" (28-33).

The Indictment also quotes from Trump's public statements about the importance of protecting classified information from illegal release.  On August 18, 2016, during his first presidential campaign, Trump stated, "In my administration, I'm going to enforce all laws concerning the protection of classified information.  No one will be above the law."  On July 26, 2018, Trump issued a public statement announcing his decision to revoke former CIA Director John Brennan's security clearance.  He said that "I have a unique, constitutional responsibility to protect the Nation's classified information, including by controlling access to it."  He referred to Brennan's "erratic conduct and behavior" as showing that he should not have a security clearance.

The debate over whether Trump should be put on trial for the criminal offenses charged in this indictment will be between two opposing views.  Many people will say that putting Trump on trial will vindicate the rule of law by showing that no one--not even a former president--should be above the law.  These people will emphasize the strength of the case against Trump laid out in the indictment.

But on the other side, many people will accept Trump's argument that he is obviously innocent of any crime, and that the charges against him are really a partisan attempt of the Democrats to promote the reelection of Biden by eliminating Trump as the best Republican opponent.  These people will ignore the evidence presented in the indictment.  Indeed, over the past few days, those coming to Trump's defense have been largely silent about the specific evidence in the indictment.

Those arguing that this indictment shows the "weaponization" of the Department of Justice to serve partisan political ends will point to the fact that Biden has not been indicted for his mishandling of classified documents.

Those on the other side will point out that in January of this year, the Attorney General appointed Robert K. Hur as a special counsel to investigate how classified documents ended up in President Biden's private office and home.  They will also point out that Biden's lawyers turned over these documents as soon as they found them, in contrast to Trump's attempt to hide his classified documents and lie about what he was doing.

The litigation of Trump's case could become complicated because the chief clerk of court for the Southern District of Florida has assigned this case to Judge Aileen M. Cannon.  Judge Cannon is a Trump appointee who intervened in September of last year to order that the Justice Department could not review the documents that the FBI had seized in its search of Mar-a-Lago, and that a "special master" should take over the review of the documents.  This was widely seen as a brazen attempt by a biased judge loyal to Trump to delay the legal proceedings against him.  

The Justice Department appealed Judge Cannon's ruling to the United States Court of Appeal for the Eleventh Circuit in Atlanta.  On December 1, 2022, a three-judge panel from this court overruled Judge Cannon with a scathing opinion saying that Judge Cannon had no jurisdiction to intervene in this case, and that she was illegally trying to "carve out an unprecedented exception in our law for former presidents" that would deny the equal application of the rule of law (3, 20-21).  Remarkably, all three of the judges on this panel were Republican appointees, and two of them were Trump appointees.

This confirms my argument that Trump has often been defeated in his plot to overthrow American constitutionalism by judges that he himself appointed.  This supports the rule of law by showing that even if some of Trump's politically appointed judges (like Judge Cannon) will pervert the legal process to protect Trump, many of these judges will show impartial judgment in ruling against him.

If Judge Cannon again takes control of the case against Trump, she could rule in favor of the delaying tactics that Trump has used throughout his life.  Eventually, if a Republican is elected president in 2024, the new president (perhaps Trump himself) could pardon Trump or order the Department of Justice to drop the case against Trump.  

That could be a devastating blow to the Lockean rule of law in America.

Recently, as I have reread Smith's indictment, I have wondered why the indictment provides no explanation for Trump's motive in holding these secret documents.  For almost two years, the National Archives, the Department of Justice, and even his own lawyers told Trump that he must return the documents or face criminal prosecution.  He stubbornly refused.  He told his lawyers: "They're mine!"  Why?

The answer might be what I have described as his Grandiose Narcissism Personality Disorder.  Holding those classified documents and showing them to people around him make him feel important--as if to say, look at these top secret documents that I have, don't you how special I am?