The ‘Fifth Avenue’ Indictment

When Donald Trump was president, his detractors often had reason to say, “There’s always a tweet.”

What they meant was that his conduct in office contradicted the opinions he had expressed on Twitter in years past so frequently that one could always find an old tweet of his to embarrass him. The supply of hypocrisy was rich enough that dedicated accounts were set up to mine it.

All politicians are hypocrites but “there’s always a tweet” hit harder with Trump because he evinces no moral core whatsoever. His ethics evolve moment to moment to suit his immediate needs and he makes no bones about it. When he was asked at his town hall with CNN last month why he supported defaulting on the national debt after he’d condemned default as president, he answered, matter-of-factly, “Because now I’m not president.”

Even when there isn’t a tweet, there’s always a quote. So it is with this tweet-sized soundbite from 2016 that made the rounds on his old social-media stomping ground on Friday, the morning after he became the first former president to be charged with a federal crime—for, among other things, willful retention of national security information.

“No one will be above the law.” Two years later, anyone who’s anyone in his party is histrionically indignant that that principle, which he endorsed only because he thought it might give him a leg up against Hillary Clinton, might also apply to him. There’s always a tweet.

There are many other things to say about the new indictment. None are encouraging for America.

There’s never been a Trumpier scandal than this.

Superficially, the Stormy Daniels mess that got him indicted in Manhattan is a “Trumpier” scandal than concealing sensitive government information. There’s infidelity, a porn star, hush money, all the sordid, embarrassing things you’d expect from a guy who spent his adulthood jungled up with the sleaze merchants at the National Enquirer.

The documents scandal is Trumpier, though, because of how stupid and avoidable it was. “Mr. Trump brought these charges upon himself by not only taking classified documents, but by refusing to simply return them when given numerous opportunities to do so,” Mitt Romney said today, succinctly and correctly. The feds spent more than a year cajoling him to hand over the hundreds of sensitive documents he’d taken, an indulgence they wouldn’t have granted to anyone else in American life. He resisted anyway, per the reporting, and may even have instructed aides to hide documents on the day before the FBI visited Mar-a-Lago. He’s now facing at least one count of obstruction of justice.

Why did he take this insane risk, exposing himself to criminal jeopardy that could lead to him dying in prison? The most compelling theory is that … he just didn’t want to give the documents back. He’s never distinguished between the perks of public office and his personal interests, an authoritarian quirk that sets him apart even from wannabes like Ron DeSantis. He kept the documents because he wanted them; they’re “cool,” as he reportedly put it in newly revealed audio recorded in July 2021.

He’s thrust the country into a wrenching and needless political crisis because he couldn’t bear to part with “cool” stuff to which his old job had given him access despite many opportunities to do so without consequence. Between the immense selfishness of it and the inscrutable idiocy of his motives, it’s the Trumpiest scandal ever.

And it was possible only because Trump believes himself to be above the law. He must have calculated that there was no downside in trying to hold onto the documents: Either he’d succeed in hiding them from prying federal eyes or the feds would find them but dare not charge him, knowing how doing so would look and how the right would react. A life lived without accountability led to this.

Top Republicans are focused on shifting blame, not pretending that he’s innocent.

You won’t find many Republican politicians defending Trump on the facts today, and not just because they’re all not-so-secretly thrilled to see him suffer.

Last summer the FBI search of Mar-a-Lago detonated a nuclear blast of outrage among the right on his behalf only to have the mushroom cloud shrink as the details of what he was accused of became known. Many have learned from that, it seems: Why inch out onto a legal limb when Trump is apt to turn around and saw it off?

Republicans were wise not to invest too much rhetorically in his innocence on Thursday night. On Friday CNN alleged that audio recorded in July 2021 captured Trump admitting that he hadn’t declassified some of the documents he’d taken with him (“As president, I could have declassified, but now I can’t”) and apparently displaying the material to other people in the room (“Secret. This is secret information. Look, look at this. … This was done by the military and given to me.”). At first blush it’s hard to believe that even he could be that reckless, but this is the same guy who once tweeted a sensitive satellite photo of an Iranian rocket and babbled about highly classified information to two Russian diplomats visiting him in the Oval Office.

He can definitely be that reckless.

Only his most diehard loyalists would spend any of their own credibility at this point vouching for his. Instead, many Republican politicians are complaining today about double standards. If the people we hate get to commit crimes with impunity, why don’t the people we like get to commit them too? the “law and order” party demands to know. Is there, in fact, a double standard that explains why Donald Trump is being prosecuted while Joe Biden, Mike Pence, and Hillary Clinton are not?

There’s no double standard. Our friend David French remembered James Comey’s reasoning in 2016 for why Hillary Clinton wouldn’t be charged with mishandling classified information. Traditionally, said Comey, the Justice Department hasn’t prosecuted people for being negligent with sensitive documents. Intentionally mishandling documents and obstructing justice are a different ballgame, however:

“In looking back into our investigations into the mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts,” Comey said. “All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of information exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”

We do see them in Trump’s case, assuming the reporting on his conduct is accurate, just as we saw them in the cases of Sandy Berger and David Petraeus. As such, writes French, not charging Trump in this case would have been more scandalous than letting him off the hook. Inasmuch as there’s a double standard, it’s a double standard by the right in wanting Clinton prosecuted and Trump absolved despite the fact that his misconduct was more egregious than hers.

Because the facts available to us are so damning and the case for indicting him so clear, Republican politicians and commentators have channeled their energy into shifting blame for the mess he’s created. Rep. Nancy Mace congratulated Joe Biden on having assured Trump’s nomination for president by charging him; Sen. Marco Rubio accused “these people” of “ripping our country apart & shredding public faith in the institutions that hold our republic together;” Sen. JD Vance, normally prone to exulting in the idea that America is “in a late republican period,” found himself appalled that Biden would “use the justice system to preemptively steal the 2024 election.”

Let the reader understand: Trump created this crisis. Republican primary voters, not Joe Biden, will choose the next nominee. If the country is “torn apart”—a nonzero possibility, especially with populist congressmen egging it on—it’ll be right-wingers who do the tearing because they’ve concluded that accountability for Trump is illegitimate per se. Only a blind Republican partisan desperate for excuses to continue supporting this morally bankrupt party would look for a scapegoat instead of placing the blame for the state of the GOP where it belongs. 

This indictment is a “Fifth Avenue” indictment, in short, proving the truth of what Trump famously said about shooting someone on Fifth Avenue and not losing a single vote. His apologists are done pretending that he’s innocent of the things of which he’s been accused and done pretending that they’ll care if he isn’t. The upshot of their reaction to the federal indictment is that there’s no circumstance under which he could justly be tried and convicted. Not even in Trump-supporting Florida, with Trump appointee Aileen Cannon presiding. He’s above the law.

If you’re looking for “banana republic” elements in this fiasco, start with that attitude.

If he gains in the polls after this, the primary is probably over.

I try not to let my natural pessimism lead me into defeatism. But if Trump gets an “indictment bounce” in the next few weeks from the federal charges, it’ll be hard to imagine Ron DeSantis or anyone else overtaking him.

“C’mon, it’s still early,” you might say. Right, but if your team is down 8-0 in the first inning, it’s probably not going to win. And Trump already enjoys a de facto 8-0 lead by dint of his first “indictment bounce” in late March, when he went from a 15-point lead over DeSantis to a 30-point lead in the span of three weeks following his arraignment in Manhattan. If, three weeks from now, he leads by 40 points, it’ll be tantamount to a 12-0 lead in the second inning. How far behind can Team Anti-Trump fall before all chances of a comeback evaporate, realistically?

A new “indictment bounce” would suggest that the primary has become a referendum on showing solidarity with Trump against the “deep state” rather than a choice among candidates based on who’s most likely to advance the party’s interests. And populist influencers whose clout depends on Trump’s favor are keen to see it happen:

DeSantis can’t win that referendum.

Even if Trump doesn’t gain in the polls, maintaining his current lead would be a discouraging sign. Practically every scenario in which he goes on to lose the primary calls for some sort of force majeure to intervene and weaken him; additional criminal charges have always been the most probable example because they’d further diminish his electability next November. If Republican voters decide they don’t care about that extra “baggage” and his numbers don’t fall, what then?

Following reaction to the indictment last night on social media among DeSantis supporters was revealing. Instead of arguing forthrightly that the classified-documents mess proves once again that Trump is unfit for office, many resorted to claiming that his ongoing persecution by the “deep state” shows that he’s unequal to the task of defeating it. In order to reach persuadable Republicans, they felt obliged to adopt the logic of Trump’s own febrile excuses for his ordeal. Fighting on his morally impoverished rhetorical turf suggests they’re fighting a losing battle and they know it.

There’s no easy way for his opponents to spin this.

While I was writing this newsletter, the Justice Department published the indictment. It’s worse than expected. Considerably worse, in fact.

Which is … bad news for Trump’s opponents?

In a sane party it would be wonderful news. A hugely damning criminal indictment of the frontrunner that drops in the middle of a primary is manna from heaven, the sort of game-changing deus ex machina you’d expect from bad fiction.

But in this party, with this frontrunner, a compelling indictment makes for tricky politics.

The charges in the Stormy Daniels matter were weak tea even to me. That made it easy for Ron DeSantis, Nikki Haley, and the rest to take a position on it: “Witch hunt,” “hoax,” yadda yadda. Trump did get a bounce in the polls from it, as noted earlier, but all of his challengers passed the party litmus test on the issue. His bounce may yet fade as Republican voters forget about the New York prosecution and put it behind them. DeSantis might be able to cut into his lead as it does.

The federal indictment isn’t going to fade.

Trump is in real jeopardy here. And so what stance a candidate like DeSantis, who’s building a coalition of Trump-friendly populists and Trump-skeptical conservatives, should take on it is harder to grok.

Last night, before the indictment dropped, the governor played it safe: 

“Why so zealous in pursuing Trump yet so passive about Hillary or Hunter?” he asked. Read the allegations in the indictment about how comically reckless Trump was in refusing to secure highly classified material and you’ll understand. 

In fact, because the facts are so bad, the pressure to pass the litmus test will be that much more intense this time. Anyone can sneer at the weakness of the Manhattan charges, but only a truly loyal populist hero will show solidarity with the right by sneering at the federal indictment as well.

“The only way Republican voters will understand the devastating nature of this indictment is if conservative media and Republican elected officials and 2024 GOP candidates all say, clearly, that the evidence is irrefutable and Trump should be prosecuted,” Sarah Longwell tweeted this afternoon. If that’s true then we’re in trouble, as the bottomless hackery of conservative media assures that every influential right-wing propagandist in radio, TV, and streaming will tell their audiences that only a lib would have a problem with what Trump is accused of.

So will Trump’s many allies in the GOP leadership class Mike “Mr. Constitution” Lee, who’s concluded that holding the former president accountable for endangering national security is communist.

Even Republicans who should know better do not, in fact, know better. And Republicans who definitely don’t know better are behaving true to form.

If DeSantis chooses to pass the populist litmus test by joining the pack and defending Trump, how will the traditional conservatives in his base who are shocked by the indictment feel? As Alex Griswold noted earlier, it’s beyond exasperating to normies that Republican candidates continue to say “we need to move on from Trump and we all know why,” only to wave off each new Trump scandal that comes down the pike as a witch hunt.

Don’t you agree, Nikki Haley?

That’s a nice try, but “we need to move on from Trump because that’s what the ‘deep state’ wants us to do” isn’t going to cut it, I don’t think.

She, DeSantis, and the rest could try dodging this subject entirely on grounds that they don’t want to prejudice the trial by commenting, but that won’t cut it either. Eventually they’ll be asked whether, as president, they would pardon Trump. The facts alleged in the indictment, if proved, make that a no-win proposition for them no matter how they answer.

If I were them and stuck with taking an anti-anti-Trump line at a minimum in this matter, I would encourage him to seek a speedy trial, as he’s entitled to do under federal law. Trump being Trump, he’ll want to play for time and drag out the process endlessly; his best chance to avoid prison is, surreally enough, to win the presidency again and shut down his own prosecution. DeSantis and Haley should counter by pressuring him to go to trial as soon as possible, before the year is out, so that there’s no cloud over the party next fall in case he’s the nominee. “We’re confident you’ll win in court, Mr. President!” they might say, disingenuously.

Having him tried and convicted before the convention may be our best chance of preventing a coup-plotter from governing the country for another four years. (Unless …) That’s the state of America in 2023.