HOW DOES PRESIDENT Joe Biden’s apparently unauthorized possession of classified papers, left over from his vice presidency, affect the relationship between the law and the presidency? A deputy opinion editor at the Washington Post, David Von Drehle, wrote that the news last week of a new batch of Biden papers “should spell the end of any realistic prospect of criminal charges against former president Donald Trump over his Mar-a-Lago portfolio of pilferage.”
Here were two dangerous words for an opinion writer, casting doubt on one another: was this an assessment of what was “realistic,” or a demand about what “should” happen? Was Von Drehle arguing about how things were or about how things ought to be?
Or neither? Trump’s refusal to hand over classified documents, Von Drehle wrote, “constituted a case that bordered on open-and-shut.” So why not prosecute him for it?
Von Drehle explained, or at least wrote a paragraph that occupied the space where an explanation would go:
But now that case will probably not be brought, no matter how many side-by-side charts are created to distinguish between the known allegations against Trump and the (so far unknown) culpability of Biden. According to the latest Gallup data, 45 percent of Americans identify as Republicans or leaning toward the Republicans; 44 percent are Democrats or lean in that direction. The Justice Department serves them all, and its credibility rests on being perceived to play fair.
There were two notable absences in this account of what people would do and why they would do it. It began with the passive construction that the “case will probably not be brought,” as if the case itself, not the prosecutors of the Justice Department, were the one in charge of the bringing. And it ended with the problem of whether the department is “being perceived to play fair.”
Who was committing this disembodied act of the perception of fairness? David Von Drehle, deputy opinion editor of the Washington Post, in that very column—in that precise passage, even! Perhaps he believed he was describing his perception of other people’s perception of fairness. But the column’s existence, on its own, expressed the belief that the scandal over Biden’s papers was a serious enough matter to cast doubt on any prosecution dealing with Trump’s papers.
The mainstream political press was committed to that belief from the moment the news of Biden’s possession of classified documents broke: Trump’s documents were a page-one scandal, therefore Biden’s documents also belonged on page one. The original context—that Trump’s case landed on front pages because federal agents had raided Mar-a-Lago, because he was allegedly refusing direct requests to return the documents he had—no longer mattered. The two stories had to be balanced. The Democrats had gotten their turn, and now the Republicans were going to get theirs.
And so an opinion editor at the Washington Post was arguing that a “so far unknown” violation on Biden’s part had to cancel out a near “open-and-shut” violation by Trump, in the name of fairness. Or of the perception of fairness. Or of realism? It didn’t have to make sense, because Von Drehle’s true focus wasn’t the Biden proto-scandal at all.
What he was worried about, he wrote, was the threat of Donald Trump—a “bad person,” whose “presidency has been a terrible thing for the country I love,” but a person who should not be punished for apparently breaking the law:
I’m relieved by the likely collapse of the classified documents case against him. Because it was the strongest case against Trump, in terms of trial strategy, it was the most likely to produce an indictment—and indicting Trump is a terrible idea for those who genuinely hope to be rid of him.
Behind Von Drehle’s overexcitability about the latest Biden headlines, that is, lay a fossilized complacency—the endlessly discredited, endlessly renewed establishment belief that Trump is too dangerous to be held accountable. Right now, Von Drehle wrote, “Trump is a dead man walking” who has “lost the ability to drive the news cycle.” A prosecution, he argued, would revive him:
To be indicted and hauled into court for history’s most heavily publicized trial would invigorate Trump, and the spectacle would galvanize his dwindling base of support. He’d go from grumbling irrelevance in the gilded prison of his Mar-a-Lago mausoleum to ring master of a circus trial that would dominate every news outlet.
This was the same logic that kept Democratic leadership from impeaching Trump for months after they won back the House in 2018, until he finally pushed them too far by trying to undermine Biden’s presidential candidacy. Trump would relish the fight, and his support would only grow stronger.
But if Trump is diminished and unpopular now, it’s because people and institutions have been pressing their cases against him. The January 6 committee spent last year collecting and broadcasting the evidence that Trump brought about the attack on the Capitol and sat back and sullenly watched the carnage on the White House dining-room TV rather than saying or doing anything to stop it. The state of New York convicted his company of tax fraud. The National Archives got so tired of his refusal to turn over classified documents that, again, the government sent agents to raid his luxury compound in Florida.
None of this made Trump look good or increased the size of his following! What empowered Trump and his movement all along was the belief that he had the power to get away with whatever he, or they, wanted. Now that people have put some effort into stopping him, the ex-president looks distinctly non-unstoppable. “His outlandish social media posts fall as silently as unheard forest trees,” Von Drehle wrote. Yes, they do—because Twitter and Facebook took his accounts away after the Jan. 6 attack, for the sake of deterrence and punishment.
Von Drehle was out to convince the public, and himself, that Trump has settled into harmlessness, and must not be disturbed out of it:
As drum major of a wackadoodle parade, he marched through the Republican primaries last year, delivering candidates who bombed in the general election. Now no one marches to his tune. When he tried to influence the election of a House speaker, even the surviving zealots ignored his instructions.
That was one way of describing recent events, but wasn’t a very good way. Trump’s march through the Republican primaries may not have led to much success in the general election, but it successfully wiped out the last remnants of the party’s anti-Trump wing. The zealots ignored Trump’s endorsement of Kevin McCarthy in the House speaker’s race because they saw McCarthy as an insincere standard-bearer for Trump’s cause. And in the days after Von Drehle published the piece, they kept wringing concessions out of McCarthy until they had taken control of the House Oversight and Accountability Committee.
If the Trump movement were simply a bunch of people following Donald Trump, then it might be possible to dream that by leaving Trump alone, you could make it all go away, and that the country could settle into the ordinary, comforting rhythm of alternating party-for-party scandals in the news. “Rather than reboot the old show as a courtroom drama,” Von Drehle wrote, “we must call off the conflict that feeds the beast.”
But the conflict isn’t something the Washington Post opinion page can call off, and the beast hasn’t lost its appetite. The same legislators who plotted with Trump to overturn the 2020 election are now running the Oversight Committee as a bastion, or a forward outpost, of Trump loyalists. They’re writing the investigative agenda for the House majority with the aim of avenging not only Biden’s victory, but the Jan. 6 prosecutions. Yielding to Trump’s desire for impunity won’t placate them. It will confirm that they’re winning.
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