"Don't miss", is Douthat's "warning" to Merrick Garland in the MAL search. In other words, if you shoot at the king make sure you kill him. But forgive me if my vivid sense that General Garland already shot and missed by approving the search warrant is wrong:
The two weeks since the F.B.I. descended on Mar-a-Lago...exciting Twitter speculation about espionage and treason, a “this time we’ve got him” spirit...
...we can look back and consider why they didn’t “get him” then, why Russiagate ended in a relative fizzle and sealed Republicans into a permanent suspicion of any investigation into Trumpian malfeasance.
...made both the feds and the press look as if they had overreached...confirming Trump’s supporters in their belief that whatever sins their man might commit, the deep state was always out to get him.
Now here we are again...I sincerely hope that the attorney general had the Russiagate experience in mind when he signed off on the search of Mar-a-Lago and that he considers how Mueller’s investigation finished as he considers his next move.
That's enough. You see what Douthat is doing there? "Here we go again." "You're investigating again! Did you forget how the Russiagate INVESTIGATION ended?! Stop investigating! What are you crazy? Trumpists will go nuts!" The search was the shot and it missed.
"And lemme tell you, Merrick, unless your investigation turns up a lead pipe cinch case, don't charge him!" (that's what he writes, see below) 🤔How are we to know what case we have and how serious it is unless we like investigate it? "Exactly! Don't investigate in the first place! It's just like COVID testing. Only reason we have so many cases is we test so much!"👀
Douthat then sets up a false binary hypothetical:
...if you have Trump 1) taking design documents for nuclear weapons and shopping them to his pals in Saudi Arabia, congratulations — you got him; lock him up. If you have him 2) taking boxes of notes from foreign leaders because he’s a childish egomaniac who thinks that he’s earned his White House souvenirs, well, then take the documents back, declare victory for the public interest and stop there. ...
It seems like a reasonable presumption that the documents in question are 1) more serious than just some notes to Kim Jong-un but that 2) the potential incrimination falls short of Trump literally selling secrets. ...
That is too reasonable to be reasonable. OBVIOUSLY the ELEVEN SETS of material seized from MAL are not just "some notes to Kim Jong-un" and equally obvious there is not the hint, suspicion rumor that Trump was "shopping them" to Saudi Arabia or anywhere else. Come on. There is an (obvious) in-between area but no vivid hypos (happily supplied by the undersigned). Some of the documents were labeled "Confidential," some "Top Secret", and some were tagged "TS/SCI", "Top Secret/Sensitive Compartmented Information". The Espionage Act cited by the FBI--and signed off on by Judge Reinhart as establishing PROBABLE CAUSE to believe was violated--is not based on intelligence classification. Nor is it limited to "shopping", transferring or transmitting:
18 U.S. Code 793(f)
Shall be fined under this title or imprisoned not more than ten years, or both.
Wikipedia notes that Kenneth Wayne Ford Jr. was indicted under for allegedly having a box of documents in his house after he left NSA employment around 2004. He was sentenced to six years in prison in 2006.[90], the same conduct Trump is accused of.* And subsection (e) deals with transmittal, not mere mere "removal" from its "proper place." I read one legal eagle analogize it to the possession of child porn. "If it's on your computer, you're going to jail." Given that Ford was sentenced to six years in prison for just having NSA documents in his home, identical to what we believe Trump's conduct to be, is that a slam dunk case for Ross Douthat? Or for Douthat does only "sale equals jail"? Does it have to be a "sale", or can it be a "gift"? Either way does it have to be to a loathsome regime, the Saudis, or may it be to a "special relationship" country, Great Britain or Israel? And if there is no sale or transmittal should Garland "take the documents back, declare victory for the public interest and stop there"?*U.S. District Judge Peter J. Messitte sentenced Kenneth Wayne Ford, Jr., age 34, of Waldorf, Maryland, to 72 months in prison, followed by 3 years of supervised release for unlawfully possessing classified information related to the national defense, and making a false statement to a U.S. government agency. Ford was convicted on December 15, 2005 after a two week trial.
United States Attorney Rod J. Rosenstein said, "Government employees who betray the public trust and endanger national security must be held accountable."
Sounds like a good, ethical public servant that Rosenstein guy. Wonder what became of him?
According to evidence presented at trial, Ford was employed by the National Security Agency (NSA) in Maryland between June 2001 and late 2003. On January 11, 2004, FBI agents executed a search warrant at Ford's residence in Waldorf, Maryland and discovered sensitive classified information throughout his house, including numerous Top Secret documents in 2 boxes in Ford's kitchen. ...Ford took home the classified information on the last day of his employment at NSA in December 2003...
In the legal biz we call precedent like this as being "on all fours" with the case at bar.
Witnesses from both the NSA and the Central Intelligence Agency testified that the classified documents, some of which were displayed to the jury in edited form, were extremely sensitive and related to the national defense of the United States.
...
United States Attorney Rosenstein commended the Federal Bureau of Investigation for their work on this case.
I would also like to commend the Federal Bureau of Investigation. 😘
