Is Donald Trump Above the Law?

Bryan Nishimura would like a word

In the historic federal indictment regarding his handling of classified documents, Donald Trump is, in the words of National Review’s Jeffrey Blehar, “nailed dead to rights.” Andrew McCarthy agrees. Former U.S. attorney general and frequent Trump defender Bill Barr says “he’s toast.” None of these people are what you could call liberal or woke. But at least on this point, they have read the indictment and know what it means. You need to read it; it is a hammer.

Just so we can work from the same page, here is what the indictment alleges about Trump’s conduct:

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.

Again, you need to read the indictment. There are pictures of boxes of documents kept in a bathroom, and a storage room, and elsewhere in Mar-a-Lago. There are recordings of him acknowledging that he had classified information that he wasn’t supposed to have. In short, Trump illegally kept classified information about our national defense in insecure locations and lied about it to the FBI.

Is Donald Trump Above the Law?

Other people, although never a former president, have done the things alleged in the indictment. Many of them have been convicted and paid fines, served jail time and/or suffered the loss of security clearance. Here is an example of just one, Bryan Nishimura. This comes from a 2015 FBI press release:

SACRAMENTO, CA—Bryan H. Nishimura, 50, of Folsom, pleaded guilty today to unauthorized removal and retention of classified materials, United States Attorney Benjamin B. Wagner announced.

U.S. Magistrate Judge Kendall J. Newman immediately sentenced Nishimura to two years of probation, a $7,500 fine, and forfeiture of personal media containing classified materials. Nishimura was further ordered to surrender any currently held security clearance and to never again seek such a clearance.

According to court documents, Nishimura was a Naval reservist deployed in Afghanistan in 2007 and 2008. In his role as a Regional Engineer for the U.S. military in Afghanistan, Nishimura had access to classified briefings and digital records that could only be retained and viewed on authorized government computers. Nishimura, however, caused the materials to be downloaded and stored on his personal, unclassified electronic devices and storage media. He carried such classified materials on his unauthorized media when he traveled off-base in Afghanistan and, ultimately, carried those materials back to the United States at the end of his deployment. In the United States, Nishimura continued to maintain the information on unclassified systems in unauthorized locations, and copied the materials onto at least one additional unauthorized and unclassified system.

Nishimura’s actions came to light in early 2012, when he admitted to Naval personnel that he had handled classified materials inappropriately. Nishimura later admitted that, following his statement to Naval personnel, he destroyed a large quantity of classified materials he had maintained in his home. Despite that, when the Federal Bureau of Investigation searched Nishimura’s home in May 2012, agents recovered numerous classified materials in digital and hard copy forms. The investigation did not reveal evidence that Nishimura intended to distribute classified information to unauthorized personnel.

You can read Nishimura’s plea deal here.

Note the similarity to what is alleged in the Trump case. Trump kept classified information illegally. He was aware he was doing so illegally. He misrepresented to investigators what he had in his possession. One difference is that Trump recklessly shared the classified information with others.

If Trump is convicted and receives similar penalties (or makes a Nishimura-like plea deal), he will never be allowed to handle classified documents again. This, of course, means that he could never be president. How could a president possibly discharge his or her duties without the ability to be briefed on classified information? This may seem obvious, but it is an implication that Trump’s Republican rivals have yet to exploit.

I close by again exhorting readers to read the indictment. Compare it to less famous Bryan Nishimura’s case and ask yourself if Donald Trump is above the law.

P.S. Remember Hillary Clinton? You know, Hillary? She ran for president once against Trump and had some kind of email problem. I remember Republicans went all crazy because she had some classified emails on her private server. Remember the “lock her up!” chants? The Republicans very much cared about classified documents when Hillary Clinton was running for president. Weird that now they don’t.