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While the quote in the headline was written by Legal scholar Jonathan Turley before the indictment against former president Donald Trump was released — shortly before I wrote this sentence — his comments and observations in his article remain relevant.
Turley, who’s also an accomplished writer, commentator, and media legal analyst, on Friday asked a simple question with complex legal repercussions after a grand jury indicted Donald Trump on seven criminal charges in connection with his mishandling of more than 100 classified documents that were discovered last year at his Mar-a-Lago resort in Florida.
What was in the mind of Donald Trump?
We’ll get to the distinguished law professor’s answer. Meanwhile, Trump is the first former president to face federal criminal charges.
“I am an innocent man,” Trump defiantly declared, which came as no surprise, given the former president is far from the first person indicted on criminal charges to immediately declare his or her innocence and the former president, to my knowledge, has yet to admit doing wrong while president — nor after he left office.
Turley, whose legal views are widely respected, including here at RedState, pointed to a critical fact about the indictment of Trump:
[When Trump declared his innocence] he was speaking to millions of people who have already made up their minds on an indictment that has not been released, let alone read. Indeed, the specifics of the indictment seem entirely immaterial to most people.
For roughly 30% on both ends of the political spectrum, any inquiry into these charges will begin and end at the caption: “United States v. Trump.” Those four words either sum up a prosecution or persecution in the minds of most citizens.
Jonathan Turley’s words, not mine — every one of which was correct.
Whether one loathes or loves Donald Trump, the battle lines were long ago drawn in the sand: To those who despise the former president, he’s always been guilty as accused without a scintilla of truth to back the accusations.
To those who love Trump, he’s never been guilty, often despite evidence to the contrary. And in some cases, Trump himself has made accusations devoid of substantive proof to back said accusations. Either way, opinions about Donald Trump and his actions are as polarizing as any I’ve seen in all my years of writing about politics.
Turley further opined:
This case, however, is different. In New York, Trump is facing a clearly political prosecution by Manhattan District Attorney Alvin Bragg, a case that easily fulfills Trump’s narrative of the weaponization of the criminal justice system.
In Georgia, another Democratic openly anti-Trump prosecutor is pursuing a case of election interference that many have questioned.
Yet, for roughly two years, I have said that there was one torpedo in the water that was a serious threat: an obstruction charge out of Mar-a-Lago.
That torpedo just hit.
Despite Trump’s claim that all of the classified documents he took had been returned to the National Archive, some were not — and remained in the former president’s possession. The FBI asked for access to a Mar-a-Lago storage room for the documents, which was granted by Trump and members of his staff — as the former president has said multiple times that he has cooperated completely with the FBI on the case.
While the Trump team has claimed they were already cooperating when the FBI raid at Mar-a-Lago occurred, Turley said, “The FBI has offered a strikingly different account.”
From the very start, they described the conduct of the Trump team as “obstructive” — a line that many of us immediately flagged as ominous. There are allegations of the movement of documents, false statements, and even the possible destruction of documents. In the end, however, there is the mind of Donald Trump.
In Turley’s legal opinion, the classified documents indictment and related charges will be decided based on mens rea: whether Trump knew that “what he was doing was wrong, and what was his intent?”
I cannot answer that question, and neither can anyone else who hasn’t read the indictment, despite the untold numbers of protestations to the contrary from pro-Trump to ant-Trump and anywhere in between — the nanosecond the indictment was first reported.
Those are facts, as Turley pointed out before the indictment was released. Regardless, opinions are not facts. Turley further explained:
As in so many past controversies, Trump’s intransigence seems inexplicable and self-defeating. However, to be criminal, it must be a knowing or willful violation of specific provisions. There still remain key details that could blunt this defense.
We know that prosecutions forced Trump attorneys to go before a grand jury.
While that may create an appellate issue, there may be a cooperating witness who could offer damaging evidence of Trump’s knowledge or intent.
There are also rumors of video or audio tapes of the movement of documents or Trump discussing the material. What is clear is that Trump is facing charges called “the darlings” of federal prosecutors: false statements to federal investigators and obstruction of justice.
Turley further said charges against Trump present a double threat to the former president.
First, the Justice Department has a long record of winning these cases. They tend to be straightforward propositions for a jury. They are the charges that criminal defense attorneys tend to loathe because they can come down to insular allegations that come with a ten to twenty-year potential sentence.
Second, and most seriously, these charges are secondary to the original basis for Trump removing or retaining the documents. These are crimes that concern how Trump responded to the investigation. The false statements charge is particularly damaging because it is a stand-alone offense.
While everything Trump has alleged could be true, Turley noted, he could still be rightfully convicted if it’s “proved that he falsified or misrepresented a fact in a discussion with the FBI.”
Finally, Turley said: “While there are legitimate concerns over the FBI’s past bias and hostility toward Trump, it is extremely hard to prevail on such selective prosecution claims in court.”
And there it is.
The Bottom Line
The question comes down to a basic tenet of both law and justice: whether Donald Trump can or cannot be convicted beyond a reasonable doubt — based on the evidence presented to the court.
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