The Department of Justice’s patience with former President Donald Trump is wearing thin. In a Florida federal court filing Tuesday night, the DOJ shredded many of the arguments that Trump’s lawyers had made demanding that a “special master” be appointed to sort through documents the FBI recovered from Mar-a-Lago Aug. 8.
Among the most compelling rebuttals packed into the 36-page document is that the “former President lacks standing to seek judicial relief or oversight as to Presidential records because those records do not belong to him.”
It’s such a simple and obvious point — to everybody but Trump and his supporters, that is. The basic fact that the documents recovered are the property of the United States is beyond him and them. Trump’s inability to mentally divest himself of the title he gave up on Jan. 20, 2021, strikes at the core of why Trump has continued to dig himself into deeper trouble over the last few weeks.
Trump has shown himself unwilling to accept that he has once more become an average American citizen under the law. There are almost no carve-outs, legally speaking, for former presidents; “ex-president” is not a title that holds any particular weight in a court. And yet he clearly seems to believe it grants him a special place in the world, a natural evolution of the misguided and ultimately self-serving view of the presidency that he held throughout his term.
Of the 43 presidents that came before him, almost all opted to follow the lead of George Washington upon his completion of two terms. Washington was hailed as a modern Cincinnatus, the general who after being granted supreme authority to save the Roman Republic in a time of crisis, then retired from public life and returned to his farm after victory. More recently, the post-presidency path of former commanders in chief has varied, but those former presidents have generally followed the same principle of stepping back from the fray after turning over the reins to the country.
Trump has shown himself unwilling to accept that he has once more become an average American citizen under the law.
It’s been clear since his first days in the Oval Office, though, that Trump cannot separate the office of the presidency from the man who holds it. Because he’s the absolute authority figure in his family’s business, separating Trump the person from the Trump Organization is nearly impossible. It follows, then, that he saw the U.S. president as having a similar unfettered grasp on power and saw his interests and the interests of the country as indivisible.
Trump has a default preference for authoritarianism, and there are numerous examples of him abusing the power granted to him for his own benefit. He spent four years lining his own pockets at the public’s expense; he was unable to accept that there were limits to his ability to rule by diktat; and the convoluting plotting against Ukraine hinged on him using government resources as leverage, a scheme that led to his first impeachment.
Since begrudgingly leaving office, Trump and his team of misfits have shown no qualms using the trappings of the White House to profit. He issues statements from the “desk of the 45th president” and works from “the 45 Office” turning his place in history into a branding opportunity. (It was in the 45 Office that numerous classified documents were photographed during the FBI search, as was included in the DOJ’s filing.) Trump has even drawn scrutiny for use of the presidential seal at his New Jersey golf club in recent months.
Trump’s thinking that he enjoys a higher legal status than the typical American citizen shows through in his refusal to return documents that the law makes clear belong to the National Archives and Records Administration. “They’re mine,” he reportedly told allies during the monthslong negotiations that eventually saw 15 boxes of materials returned to NARA in January. It was only upon going through those documents that NARA realized that classified material was among them and alerted the FBI. And as the DOJ noted in its Tuesday filing, Trump and his lawyers repeatedly claimed that they had turned over all government property, only to have boxes of the stuff removed during that Aug. 8 FBI search.
Trump’s lawyers attempted to invoke executive privilege in their attempt to have a special master appointed to determine what the FBI can and cannot view among the seized documents. The DOJ rightly dismissed that argument Tuesday, given that Trump has no right to possess the papers seized in the first place, and that his lawyers made no such claim when they handed over the first boxes of documents. Government attorneys also note that Trump “cites no case — and the government is aware of none — in which executive privilege has been successfully invoked to prohibit the sharing of documents within the Executive Branch.”
While it is satisfying to read the DOJ’s decimation of the flimsy legal defenses Trump has erected, nothing in the filing answers the question of why Trump has been so insistent on keeping the papers that he absconded with. Among the theories circulating is that he intended to profit from them, either through selling government secrets as Bloomberg Opinion’s Timothy O’Brien considered, or as leverage for blackmailing the country should he be indicted by the DOJ, as former Trump lawyer Michael Cohen suggested to Vice News.
Former national security adviser John Bolton, who witnessed firsthand Trump’s sloppy handling of sensitive information, thinks that supposition “gives Trump too much credit.” He told SiriusXM on Tuesday that it seemed more likely that Trump “brought things into his possession thinking at some point he'd, you know, it'd be interesting to look at it later, and that's how it happened.”
That honestly tracks with what we know of Trump without making him out to be an evil mastermind. And it fits with his well-established view that once he has been given something, it can never be taken away, whether it’s a classified document or the White House. But even if that’s the case, and he was just squirreling these documents away for funsies, that only highlights his unwillingness to accept that he is no longer protected by the same authorities that shielded him while in office.