As with every single goddamn thing involving Donald Trump, the former president's theft of government documents is going to come down to one question: malevolent incompetence, or incompetent malevolence? Or, more precisely, to what degree the latest crime spree was motivated by corruption and/or sheer inability to understand that America's laws do actually apply to him. (Hat tip to Lawfare's Ben Wittes, who framed the issue perfectly back in 2017.)
Last night, Politico had an amazing piece on the chaos at the White House in the final frantic days when it finally dawned on them that losing the election by eight million votes meant they would literally have to hand over power. Unfair!
TL, DR? Malevolent incompetence, FTW:
Staff also began offboarding — leaving an increasing pile of work to a dwindling number of aides. Some of them were bitter and exhausted and displayed little desire or inclination to help an incoming administration that their boss claimed stole the election.
“Part of the MAGA movement is kind of a ‘fuck you’ to the government bureaucracy, which you can interpret as the Deep State,” said one former Trump staffer. “People were really dissatisfied with the transition and the outcome of the election. This is the last piece of control that they had [while] in power.”
Trump's people have been leaning hard into the incompetence angle as they vomit out excuse after excuse for retaining classified documents in a closet by the pool at the president's golf club. They even floated a trial balloon over the weekend that the General Services Administration (GSA), which was in charge of the transition, slipped those documents in Trump's suitcase.
But the New York Times was also busy last night with a story that emphasizes the malevolence of Trump's efforts to avoid giving back those documents he expropriated on the way out the door.
Naturally this chapter involves the same cast of characters we've gotten to know and loathe through two impeachments and several January 6 hearings — after all, it's not like there are that many lawyers left willing to work with him. On the way out the door, Trump designated White House Counsel Pat Cipollone and his deputy Patrick Philbin, as well as Mark Meadows, to be his liaisons to the National Archives. So when it became immediately apparent in 2021 that Trump had pocketed government property and records, the Archives reached out to Philbin to try to get it back.
Mr. Philbin tried to help the National Archives retrieve the material, two of the people familiar with the discussions said. But the former president repeatedly resisted entreaties from his advisers.
“It’s not theirs, it’s mine,” several advisers say Mr. Trump told them.
Could there be a more Nixonian statement than "It's not theirs, it's mine?" FFS, Congress passed the Presidential Recordings and Materials Preservation Act in 1974 as Richard Nixon was leaving office expressly to make sure he didn't confiscate and/or destroy evidence, and then clarified in 1978's Presidential Records Act that presidential records and memorabilia are historical documents that belong to the American people. This shit ain't ambiguous!
But you know what is ambiguous here? The issue of attorney-client privilege, since Philbin and Cipollone were arguably not acting as lawyers in their capacity as liaisons to the Archives. After all, Meadows, who was acting in the same capacity, isn't a lawyer. Although, we'd note that it never appears to have occurred to anyone to ask him to help get that stuff back, since, as Politico points out, document retention was really not his bag, baby.
Anyway, Trump told
Milhouse Philbin to get bent, so the Archives turned to Cipollone to see if he could help. And when that also failed to do the trick, they turned to the Justice Department, which dispatched Jay Bratt, head of the counterintelligence division, to pay a personal visit in June and see if he could shake the remaining stolen documents loose. Please bear these extensive negotiations in mind when bad faith actors like Texas Senator John Cornyn, a former judge, whines that the DOJ didn't use "less bombastic, alternative means" to retrieve the documents. Ditto for Cornyn's disingenuous blarping about disclosing the affidavit — he knows damn well that it's not coming out pre-indictment.
CNN reported last week that Bratt met with Trump's attorneys Evan Corcoran and Christina Bobb, who refused to hand over anything that wasn't marked top secret. After touring the storage locker, Bratt asked Corcoran to secure the room with a sturdier lock. The DOJ also subpoenaed security camera footage of the room, and "saw something that alarmed them," according to the Times. Also another witness told investigators that Trump might be keeping even more classified documents in his personal apartment, contradicting a written statement from an as-yet unidentified lawyer for the former president attesting that all material with classified markings had been returned. Hence, the "raid."
Yesterday, MAGA "reporter" Paul Sperry "Truthed" out yet another dumb explanation for Trump's patently illegal conduct.
\u201cI think we are on story number 57.\u201d— Ron Filipkowski \ud83c\uddfa\ud83c\udde6 (@Ron Filipkowski \ud83c\uddfa\ud83c\udde6) 1660678976
In this version of events, Trump didn't want to hand over whatever it was that he was hanging onto, for fear it would fall into the hands of the January 6 Select Committee. If this is supposed to make Trump look less guilty of mishandling classified documents in violation of the Espionage Act by saying he was only attempting to obstruct Congress and perhaps destroy evidence of criminality, well ... you're doing great, sweetie!
Over at Emptywheel, Marcy Wheeler has a terrific analysis of Trump's conduct here from the "malevolence angle." As she points out, Philbin certainly knows what Trump kept, and probably has a pretty good idea of why he was so intent on holding onto it. Because it's one thing to hang onto a "love letter" from Kim Jong-Un, and quite another to try to deprive the government of records that could, say, implicate the president in a coup plot.
Both Philbin and Cipollone have reportedly been questioned by investigators on the document issue, and it's very unclear whether they had any attorney-client privilege to assert. Philbin was interviewed in the spring, and in June Trump granted similar Archives authority to his lackey Kash Patel and disgraced reporter John Solomon. Interesting timing!
All of which is a long way of saying that there appears to be malevolence and incompetence aplenty here. The question is only one of proportion.
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