Opinion | It’s too soon to judge Trump on missing documents and fake slates


“Do you believe him?”

My Post colleague Jonathan Capehart asked me this question on Friday’s edition of The Post’s “First Look.” Jonathan was referring to Donald Trump’s three statements in a long broadcast interview with me the day before when the former president said he had declassified everything he took to Mar-a-Lago, that he had done nothing wrong in connection with alternative slates of electors ahead of Jan. 6, and that therefore he would not be indicted.

Jonathan asked me whether I believed Trump on these three points.

I replied that I simply don’t know, because answering that question would require a deep dive into the former president’s intentions as to the declassification order and the slates. There are also a lot of facts not yet in evidence — who took what documents to Mar-a-Lago, when, by whose order, and did Trump have specific knowledge of what was there?

Lawyers who try criminal cases instinctively think twice before hazarding an opinion about whether crimes warranting an indictment have been committed. That’s the right instinct in the documents and slates cases. And, crucially, Trump also told me he hasn’t received a “target letter ” from the Justice Department, which makes an indictment in either matter at least for the moment not imminent.

As to the slates of electors, Trump told me he had nothing to do with those. Of course, a question on whether to believe him is one that no one who is not deep inside the FBI investigation can possibly answer. The fabed “presumption of innocence” we rely on in courtrooms is a useful caution for journalists, including opinion journalists. Sometimes we not only don’t know, but also we can’t possibly know.

I’m open to any result. It’s why I’ve urged the Justice Department to move quickly to charge the president on the documents case (if they have a case,) and why the appointment of the special master made sense to me. If the special master, Judge Raymond Dearie — a long-serving and widely respected federal judge with seven years on the highly secret Foreign Intelligence Surveillance Court — finds all of the critical documents to be, in fact, classified and appropriately seized from Trump’s home, that’s a crucial new fact.

Jennifer Rubin


counterpointThe Mar-a-Lago espionage scandal is a three-alarm national security crisis. We should act like it.

If the judge orders the return of some, most or all of the papers to the former president, that will factor into reasoned assessments of the wisdom of the Justice Department’s unprecedented search.

On the fake electors case, which is separate from the documents search, some on Trump’s side fear the criminalization of politics and a chilling effect on reasonable efforts in close races to ensure the counts were fair. From the left, activists fear scenarios where “election deniers” refuse to accept defeat.

I don’t. Stacey Abrams’s contention that she won the Georgia gubernatorial election of 2018 didn’t stop Brian Kemp from being sworn in. Far-out theories of what could happen should not unmoor our confidence in the United States’ tried-and- true election procedures.

There is no doubting the sincerity of those worried about democracy, but threats to the rights of the accused are surely still important, especially when the accused hasn’t been charged. It is of some consideration that the uncharged accused is a former president who racked up 74 million votes in the last election and is the leading GOP candidate for the 2024 nomination.

There is a vast array of crimes that pundits and posters assign to Trump. As was the responsible position during the long investigation of special counsel Robert S. Mueller III, it is best to reserve judgment until investigations are completed.

Some crimes don’t require an intention to commit the crime. They are crimes of “strict liability,” such as selling liquor to a minor. In such cases, the intention of the criminal has no bearing on the crime.

But for the two categories of alleged crimes I questioned Trump about — the allegedly purloined documents and whether there was a criminal conspiracy to interfere with the election — they would both turn on what the president did and possibly what he intended to do. There is no need to rush to judgment ahead of an indictment, much less a trial.



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