As the investigation into Donald Trump’s classified documents scandal nears its endpoint, the former president and his lawyers are still scrambling to find a compelling defense. Increasingly, they’re focused on the idea that the Republican’s predecessors did the same thing he did — and if they weren’t prosecuted, Trump shouldn’t be either.
James Trusty, one of the former president’s lawyers, appeared on CNN last night, for example, and echoed one of his client’s favorite lines:
“Here’s the thing: What we’ve built into the system is there are years of conversation — typically years of conversation — about whether or not certain documents are personal or presidential, OK? [Barack] Obama, 2018, wrote a letter, his foundation wrote a letter to [the National Archives] saying, ‘We have thousands of classified documents. We’ll get them to you eventually.’”
As part of the same on-air discussion, Trusty added, "I'm talking about dual systems of justice."
If the idea that Obama did something roughly equivalent to Trump sounds at all familiar, it’s because the Republican and his operation have been working on this for nearly a year.
Circling back to our earlier coverage, three days after the FBI executed a court-approved search warrant at Mar-a-Lago, Trump wrote on his social media platform, “I continue to ask, what happened to the 33 Million pages of documents taken to Chicago by President Obama?” The next morning, he added, “President Barack Hussein Obama kept 33 million pages of documents, much of them classified. How many of them pertained to nuclear? Word is, lots!”
The problem, of course, is that the whole argument was, and remains, absurd. The Washington Post explained last summer:
As was reported back in late 2016, the Obama team was transferring the records to Chicago through the National Archives, which legally owns the documents once a president leaves office. Once the documents ultimately reached a warehouse in Chicago, the Obama Foundation was then due to pay the National Archives and Records Administration to digitize the documents. The lengthiness of that process aside, there isn’t the faintest hint of legal violations. There is no evidence that Obama has hidden anything from the National Archives or that he didn’t go through the processes required to share and protect those documents once they leave Washington.
Obama also, of course, didn’t defy a federal subpoena or take alleged steps to obstruct an official retrieval process.
The National Archives and Records Administration itself took the unusual step of issuing a written statement last year, making clear that Trump’s claims were wrong.
And yet, he keeps making them. During the Republican’s recent town-hall event on CNN declared, “You know who else took [classified materials]? Obama took them.”
The New York Times explained a day later, “[T]he National Archives and Records Administration, which preserves and maintains records after a president leaves office, has said in a statement that Mr. Obama turned over his documents, classified and unclassified, as required by law. The agency has also said it is not aware of any missing boxes of presidential records from the Obama administration.”
Last night, the Republican lawyer lent his voice to the idea that there’s some meaningful parallel between how the Democratic former president handled materials and how Trump did. There still isn’t.
Stepping back, the problem is not just the fact that this line of argument is wrong. Rather, what’s striking is that after all this time, Team Trump still hasn’t come up with more believable claims.
This post revises our related earlier coverage.