Eugene Robinson: Arguments against prosecuting Trump don’t add up

The performative anger from prominent Republicans over Donald Trump’s federal felony indictment is full of sound and fury – signifying nothing. None of the arguments against prosecuting the former president makes a bit of sense.

Trump’s defenders are following the advice given to rookie trial lawyers: If the facts are against you, pound the law. If the law is against you, pound the facts. And if both are against you, pound the table. Personally, I wonder if some Republicans are going to hurt themselves pummeling the furniture.

They can’t argue that special counsel Jack Smith is bringing charges against Trump that the Justice Department doesn’t routinely bring against other defendants. Earlier this month, in a federal courtroom in Tampa, a former Air Force intelligence officer named Robert Birchum was sentenced to three years in prison for unlawfully retaining more than 300 classified documents, which he kept in his home and in a storage pod in his driveway.

As with the documents Trump allegedly kept in a gilded ballroom and a chandeliered bathroom at Mar-a-Lago, the papers Birchum illegally hoarded were found during an FBI search. One difference is that Birchum – a retired lieutenant colonel who took responsibility for his actions and pleaded guilty – is a decorated special forces veteran who was in the Pentagon when it was attacked on Sept. 11, 2001. Trump, you may recall, had bone spurs.

The main complaint from Republicans actually seems to be that Trump is not being given special treatment – that his alleged offenses, all 37 counts, are not enough to justify turning a former president into a criminal defendant.

That was what they said about Trump’s first criminal indictment, by Manhattan District Attorney Alvin Bragg, for falsifying business records to hide a hush money payoff to an adult film star. But what would be a serious enough offense? Apparently Trump’s 2016 declaration was prescient: “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?”

Surely a man who has held the nation’s highest office, and who seeks to hold it again, should be held to a more rigorous standard of conduct, not a more lenient one. When President Joe Biden and former vice president Mike Pence learned that they had retained a handful of classified documents, they turned in the papers and cooperated with authorities. Trump stonewalled the National Archives and the Justice Department for months – prompting the fruitful FBI search of Mar-a-Lago last August. Would Trump have been charged had he just handed over the documents? Of course not.

During his investigation of Trump, Smith went so far as to pierce the sacred shield of attorney-client privilege. For most defendants, I’d say that was going too far. But for a former president, as with a mob boss, I believe it is justified.

It is true that our government classifies more documents than it should, sometimes keeping from citizens information we can and should know. But there are genuine secrets that officials need to protect. This is what Smith alleges in the indictment:

“The classified documents TRUMP stored in his boxes included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack. The unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods.”

Among the documents Smith alleges Trump stashed away are one “concerning nuclear weaponry of the United States” and one “concerning timeline and details of attack in a foreign country.” Seriously, Republicans, you want that stuff just lying around?

The loudest complaint from Trump’s defenders, and the most ludicrous, is that Biden is “weaponizing” the justice system against his most formidable opponent in the coming presidential election. Puh-leeze.

For the moment, leave aside the fact that Biden, unlike Trump, does not tell the Justice Department what to do. Just look at the politics. Biden may believe he can defeat any Republican nominee, but he knows he can beat Trump. He’s already done it.

It would make no sense for Biden to do anything that might hurt Trump’s chances of winning the GOP nomination. Critics of the indictment would have to think this is some kind of double-reverse-Machiavelli based on the calculation that multiple felony charges somehow make Trump more likely to be the nominee.

But all of that is wheels-within-wheels nonsense. One man alone is responsible for this indictment: the defendant, Donald Trump, who will be arraigned Tuesday.

Eugene Robinson’s email address is eugenerobinson@washpost.com.