Ann Arbor (Informed Comment) – Although the saga of Trump’s mishandling of classified documents, as revealed in the 38-count indictment, is shocking to anyone who has ever been involved in government work, it is also darkly comic and trivial. Trump seems to have held on to the top secret documents the way a collector hangs on to objets d’art once loaned to him — just to have them around and to take them out and show people to impress them from time to time. There isn’t any evidence that he planned to use the documents to make money or to blackmail someone. He was just a spoiled rich guy born with a silver spoon in his mouth who was used to keeping stuff he wanted to keep, and was used to impressing people with his stuff.
In my view some of the actions Trump took while president were much, much worse than storing some old files in his bathroom. The government over-classifies things and the 1917 Espionage Act, which underpins some of the charges against him, is unconstitutional and should be struck down. Maybe if the Republicans are angered enough by its use against their party’s leader they can be proper libertarians and get rid of the damn thing.
So here are three things Trump did, which immediately come to mind, that should have been crimes that landed him in jail.
1. Trump initiated a formal policy of family separation of undocumented immigrants to the United States. He didn’t change the law, just the way Homeland Security and other agencies viewed the law. It is not intrinsically illegal for people to enter the US without a visa, if, for instance, they are seeking asylum. You can’t really tell the status of their case until they go before a judge. So up until 2017 they weren’t considered criminals. But Trump encouraged law enforcement to disregard asylum claims and to view them as having broken the law for just having stepped foot in the US. If they were criminals they had to be jailed. And children cannot be held in a jail for adults. So the practical outcome of treating the parents as criminals was that their children would be taken from them by child services and placed in juvenile detention or even in foster homes.
The policy had no other rationale but cruelty. Then White House Chief of Staff John Kelly, part of Trump’s psychopathocracy, openly boasted about sending a message in this way to immigrant families not to come with their children. There is no, repeat, no evidence that the family separations slowed immigration. The practice did, however, resemble the actions of slavers in the America of the 19th century who separated enslaved families and sold family members down the river. Some of the children taken away were US-born. The government lost track of others. Some children were abused.
Anybody who did a thing like that should go to jail for life. But it wasn’t even illegal, and although 66% of Americans disapproved, 27% thought it was the right thing to do.
2. Muslim Ban. Trump tried three times to come up with regulatory language that would allow him to ban some Muslims from coming to the United States. Discriminating against people on the basis of religion is un-American. Because he finally tied the ban to countries that would not or could not conform to US reporting requirements on would-be immigrants, he finally made it stick. Most of the big Muslim countries, like Egypt, Turkey, Bangladesh and Indonesia were not even affected. He managed to make life more difficult for Yemeni-Americans who could not see their grandparents anymore, or for desperate Syrians trying to flee their civil war. As with family separation, the cruelty was the point.
3. Trump’s deployment of force against peaceful Black Lives Matter protesters at LaFayette Square in June 2020 was illegal and unconstitutional. His attempt to order in military forces contravened posse comitatus.
Scott Michelman of the ACLU observed, “The President’s shameless, unconstitutional, unprovoked, and frankly criminal attack on protesters because he disagreed with their views shakes the foundation of our nation’s constitutional order. And when the nation’s top law enforcement officer becomes complicit in the tactics of an autocrat, it chills protected speech for all of us.”
Also illegal was his use of federal agents to kidnap protesters in Portland, Oregon, off the streets without due process.
Of course these three lawless actions that harmed large numbers of innocent people are only a drop in the bucket among the innumerable unethical, illegal, unconstitutional or just plain ugly things Trump did to our country. If he goes to jail for stupidly fooling around with some old Pentagon war plans, that will be ironic, since it is probably the least damaging of his crimes.