The anti

The legal witch-hunting of the former president is infinitely more dangerous than he is.

Here we go again. Donald Trump has been criminally charged, for the second time in three months, this time over those classified documents he is alleged to have stashed at his Florida home, before obstructing official efforts to retrieve them. Trump is once again protesting his innocence, in all caps. His media critics are once again approaching quasi-erotic excitement, hoping that this is The One that will finally bring Trump down, rattling off ridiculous headlines about him possibly facing 100 years in the slammer. Meanwhile, millions of Americans look on, exhausted and bemused.

We’re still waiting on the indictment itself, which many expect will be unsealed before Trump's appearance at a Miami federal courthouse on Tuesday. But leaks to the press suggest he is facing seven counts, including ‘willful retention of national-defence secrets, obstruction of justice and conspiracy’. ‘The willful-retention charge is a violation of a section of the broad Espionage Act, though spying is not among the charges against the former president’, notes the Washington Post, no doubt disappointing some of its more vociferously anti-Trump readers. Nevertheless, Trump could theoretically face serious prison time if convicted.

This day has been all but inevitable ever since FBI agents raided Trump's Mar-a-Lago resort last summer – a bizarre and alarming escalation in a long-running dispute between Trump and the National Archives over documents he had kept from his days in the White House. In the end, some 300 classified documents were recovered, including information on intelligence efforts in China, a ‘highly sensitive’ document about Iran's missile programme, and correspondence from North Korean dictator Kim Jong-un.

Trump, for his part, claims he declassified all the documents before he nicked them – something he seems to believe he can do ‘just by thinking it’. Legal eagles disagree, and some argue declassifying the documents would be no defence against these charges anyway. What's more, prosecutors are reportedly in possession of a recording in which Trump admits that some of the documents were not declassified anyway, taking a wrecking ball to his own argument.

You do not need to be a Trump apologist to find this whole spectacle – replaying itself once again, just a few months after Trump was indicted in New York for falsifying business records – disconcerting. Where Trump is concerned two things are often true at the same time: in this case, that while he is quite possibly guilty of at least one of the many crimes he has been accused of, that doesn't justify the way with which they are being pursued, or the legal acrobatics being performed to the ends of bringing him down.

The charges brought against him in New York in March are a prime example. District attorney Alvin Bragg essentially inflated a bunch of misdemeanours into a 34-count felony indictment, bypassing the statute of limitations as he did so. Even some liberal legal writers admitted it was ‘dubious’ and ‘shaky’. On the alleged crimes themselves – cooking his books so as to cover up hush-money payments to porn star Stormy Daniels – Trump may well be bang to rights. But the NYC indictment is still overblown and pretty obviously politically motivated, given that Bragg, a Democrat, ran for office on a ‘get Trump’ ticket.

So it is with the Mar-a-Lago investigation, where the double standards have been breathtaking. Holding on to documents that could pose a national-security risk is obviously wrong, reckless and rightly illegal. The big problem for Trump's opponents is that President Joe Biden has recently been accused of doing the exact same thing, albeit on a smaller scale. As has Trump's former vice-president, Mike Pence, who has just been cleared by the Department of Justice, a move that some commentators believe ‘lays the groundwork’ for Biden to be spared charges as well.

There are some distinctions here, of course. Trump is accused not only of mishandling the documents, but also of doing so ‘wilfully’ and blocking the investigation. But as National Review's Andrew McCarthy has argued, accidentally mishandling national-security information is no defence under the Espionage Act as it is written – nor is cooperating with investigators. What's more, McCarthy points to another, more analogous case to Trump's: namely, Hillary Clinton's notorious email server, an ‘unauthorised, laughably insecure home-brew server system, which she used for years to conduct State Department business’. This, McCarthy argues, was a ‘wilful’ act to ‘defeat government record-keeping and record-disclosure requirements’. And yet the FBI investigation into her was dropped. While the authorities were understandably wary of being seen to meddle in politics by continuing to pursue Clinton, they clearly have no qualms about doing so with Trump.

The institutions of American law and justice have undoubtedly become politicised since 2016. Even before Trump was elected, the FBI happily got onboard with the ‘Russiagate’ conspiracy theory – a lurid smear story, generated by the Hillary Clinton campaign, alleging that Trump was in the pocket of Vladimir Putin. As Sean Collins outlined on spiked recently, agents continued to spy on and investigate Trump's team even as the Russia-collusion fiction began to unravel. This politicisation isn't just a problem for Trumpists, either. Joe Biden's attorney general, Merrick Garland, stands accused of ordering the FBI to go after parents who were protesting against school boards on controversial matters like mask mandates and critical race theory.

None of this is to say that Joe Biden is orchestrating some grand legal effort to bring down his likely 2024 opponent. If we’re being honest, such Machiavellian machinations are probably beyond the forgetful, wobbly old fella at this point. The problem is more insidious than that. Ever since Trump gave the entire establishment a bloody nose in 2016, it has tried to expel him, like a virus. And it has done so pretty consciously. Leaked text messages from 2016 have revealed that top FBI agent Peter Strzok – a veteran of the Hillary Clinton emails investigation, then working on the probe into alleged Trump-Russia collusion – reassured a concerned colleague that ‘we’ll stop’ Trump getting elected.

Here's the thing about Donald Trump. Yes, he's pretty crooked. Yes, he should be held to account for any crime he may credibly have committed. And yes, he's a pantomime authoritarian who, despite complaining about his legal witch-hunting now, ran in 2016 on a pledge to imprison his opponent. But Trump's ‘Lock her up!’ bluster is nothing compared to the competent, respectable authoritarianism of his establishment opponents – who seem convinced that American liberal democracy must be destroyed in order to save it.

Tom Slater is editor of spiked. Follow him on Twitter: @Tom_Slater_

Picture by: Getty.

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