Yes, we all flush paper down the toilet. But this wasn’t toilet paper, claims Maggie Haberman, piggybacking on the recent media coverage of Trump’s unusual practices for handling documents to tout her upcoming book. “This is the book Trump fears most,” Axios noted today. “Among Trump aides, Haberman’s book has been the most discussed of the bookshelf of books from reporters who covered Trump’s campaigns and White House.”

Presidents are bound by law to preserve records, as last night’s post explained. Didn’t work out that way during 45’s presidency, Haberman says.

Trump responded this morning, calling it fake news: “Also, another fake story, that I flushed papers and documents down a White House toilet, is categorically untrue and simply made up by a reporter in order to get publicity for a mostly fictitious book.” Nope, says Bloomberg reporter Jennifer Jacobs:

However he ended up disposing of torn-up documents, there’s little doubt that he was routinely tearing them up as president despite his lawyers having warned him that doing so was forbidden. There’s been too much reporting about it over the last three years for all of it to be fake news. Whether he was doing it deliberately to destroy records of matters he didn’t want known or doing it absentmindedly out of sheer habit (he was known to tear up documents before entering politics) is unclear.

What is clear is that doing so was illegal. Removing classified material upon leaving office is also frowned upon by the DOJ:

The National Archives and Records Administration discovered what it believed was classified information in documents Donald J. Trump had taken with him from the White House as he left office, according to a person briefed on the matter.

The discovery, which occurred after Mr. Trump returned 15 boxes of documents to the government last month, prompted the National Archives to reach out to the Justice Department for guidance, the person said. The department told the National Archives to have its inspector general examine the matter, the person said…

After the F.B.I., during the 2016 presidential campaign, investigated Hillary Clinton’s handling of classified material while she was secretary of state, Mr. Trump assailed her, helping make the issue pivotal in the outcome of that race. In that case, the intelligence community’s inspector general had made a national security referral to the F.B.I., prompting the investigation of Mrs. Clinton.

[D]uring Mr. Trump’s administration, top White House officials were deeply concerned about how little regard Mr. Trump showed for sensitive national security materials. John F. Kelly, the White House chief of staff, tried to stop classified documents from being taken out of the Oval Office and brought up to the residence because he was concerned about what Mr. Trump may do with them and how that may jeopardize national security.

Kelly had good reason to worry that his boss might be careless with highly sensitive info,

Trump carting off classified documents and Hillary sharing classified information in emails are different inasmuch as Trump, as president, had the unique power to declassify information. He could have declassified everything he took with him before leaving the White House, blunting any legal objections. But did he? He can’t retroactively declassify stuff now, as an ex-president, needless to say.

The Democratic-led House Oversight Committee wants to investigate, partly because they hope to make hay of Trump’s dominance of the GOP in the midterms and partly because they assume the DOJ isn’t going to come after him for any of this, which I’d guess is correct. Prosecuting him for mishandling records would feel absurd even though the evidence that he did so is unusually strong and the potential political payoff is unusually large:

Trump continued the habit during the entirety of his four-year term. And he was sporadically but repeatedly cautioned by a hodgepodge of White House attorneys, top officials, and obedient aides that tearing up those pages up risked running afoul of a presidential records law, two former Trump administration officials recalled…

[T]he punishment accompanying prosecution could be historically significant: Anyone who violates that law is “disqualified from holding any office under the United States.”

“This is almost like low-hanging fruit, and it’s kind of perplexing the Justice Department doesn’t appear to be looking at this. We’ve been sounding the alarm on this for years,” said Nikhel Sus, a senior attorney at CREW. “If you’re sending the message to government officials we don’t take records laws seriously, what incentive do they have to comply with them? It’s encouraging noncompliance.”

It is, not just by Trump but especially by Trump if he’s reelected in 2025. Having learned that he’ll pay no penalty for destroying official records, he’ll destroy them more comprehensively in his second term.

And yet, as I say, it would feel faintly ridiculous to charge him with tearing up documents when he’s not only gotten off scot-free for more serious offenses, like trying to overturn a U.S. election or dereliction of duty in failing to protect the Capitol, but he’s the prohibitive frontrunner for the 2024 Republican nomination. That’s Trump’s secret weapon against accountability for anything he’s done. If the GOP had washed its hands of him after January 6, ending his political career in disgrace, the Biden DOJ could have expected that a large majority of the country would support charging him if they found probable cause to believe he’d committed a crime. Because Republicans refuse to hold him accountable for anything, though, any prosecution would be viewed by half the population as a political hit aimed at keeping him off the ballot in the next cycle.

Dirty pool, in other words. Regardless of how strong the evidence against him is.

And Trump understands that keenly. In fact, the more legal trouble he looks to be in, the more certain it is that he’ll run in 2024. The moment he gives up on that, the argument that prosecuting him is dirty pool to prevent him from becoming president again collapses.

Exit question: If, against all odds, he does end up being charged, will throw a Logan Act violation into the indictment too?

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