C’mon, chant it with me: Lock. Him. Up. Lock. Him. Up….

Don’t worry, they’re not going to lock him up.

What Dershowitz says in the clip below is correct. Of course there’s probable cause for an indictment. Trump knew he had sensitive government material in his possession; the feds asked him repeatedly to return it; and, as the FBI discovered once they showed up at Mar-a-Lago, he hadn’t. Seems like a cut-and-dried violation of 18 U.S.C. 2071, at a minimum. An old defense lawyer like Dersh is fond of reminding the public in interviews that prosecutors can get a grand jury to indict a ham sandwich, partly because the relevant standard for an indictment is so much lower than the standard for conviction at trial and partly because grand jury proceedings are one-sided. There’s no doubt the DOJ could bring charges here.

But Dershowitz believes they won’t. I suspect that’s also correct. Watch three minutes, then read on.

The “Nixon standard” he describes is a stupid anachronism in the context of febrile modern American partisanship. As Trump himself would excitedly tell you, there’s no crime so foul that he could commit that would convince Republicans to turn against him. If the “Nixon standard” is the standard for indicting a former president, Trump is completely above the law. The “Clinton standard” is more trenchant, however. Certainly, Trump should be held to the same standard that Hillary Clinton was when the feds declined to prosecute her in 2016.

Which, I suspect, is the reasoning Merrick Garland will use when he ultimately decides not to bring charges here.

But let’s be real. The reason Trump won’t be prosecuted isn’t because of “the Clinton standard,” which may or may not be apt depending on what the feds know about what was going on at Mar-a-Lago and we the general public don’t. The reason he won’t be prosecuted is because some of his most fanatic supporters would take to jihad as a result, with Trump egging them on in barely veiled terms on social media. People who were willing to hang Mike Pence to try to keep Trump in power won’t need much convincing to kill FBI agents to try to keep him out of prison. And they’re not shy about admitting it.

Which brings us to the other disingenuous point in Dersh’s spiel: Of course the search warrant was necessary. The reason it wasn’t served months ago is because Garland knew exactly what sort of political clusterfark would result from the FBI searching a former president’s property, especially when that former president happens to lead a cult that treats the “deep state” as a mortal enemy. Your must-read of the day is this timeline by the Times of how long the National Archives and DOJ had been trying to coax Trump into returning the documents quietly and voluntarily, without a fuss. Conversations began even before he had left office; as early as May 2021 he was notified that the Archives was missing some material. As of a few weeks ago, he still hadn’t returned all of it.

So what would Dershowitz have had Garland do? At what point do the feds get to decide that poorly secured “HCS” material can’t be left floating around Mar-a-Lago forever just because Trump doesn’t want to return it? That’s the key fact that makes this search warrant so different from searches in most criminal cases. In the average case, police execute a warrant in order to gather evidence that will prove the suspect’s guilt. In this case, they executed the warrant simply to get the evidence back, before it damaged the country by falling into the wrong hands.

Assuming that it hasn’t fallen into the wrong hands already.

By insisting on doing things the hard way, Trump left the DOJ with no choice but to send agents to retrieve the documents. And although his cronies in the MAGA establishment will never admit that, the fact that they’ve gotten much quieter lately about the search speaks volumes about their sense of his culpability.

“I would just caution folks not to draw too many conclusions,” Gov. Glenn Youngkin of Virginia, a Republican, said on Fox News. It was a starkly different admonition from his earlier condemnations of what he said were “politically motivated actions.”…

[G]enerally, even the most bombastic Republicans — Representatives Marjorie Taylor Greene of Georgia, Lauren Boebert of Colorado, Jim Jordan of Ohio — were at least initially focused elsewhere. Ms. Greene was posting on Friday about border “invasions.” Ms. Boebert noted on Twitter the anniversary of the suicide bombing of U.S. service members at the airport in Kabul, Afghanistan. Mr. Jordan was focused on an interview with Mark Zuckerberg, the Facebook founder. None tweeted about the affidavit…

And voters are again distracted by Mr. Trump in the political spotlight, even as Republicans try to direct their attention toward the economy and soaring inflation on a day when the Federal Reserve chairman Jerome Powell said efforts to control rising prices would exact pain on Americans.

Axios also noticed the deafening silence: “There’s now a renewed weariness that has seeped into the private conversations among Trump advisers and those in Trump’s orbit as more of these facts are released to the public, adding to a growing feeling there was justification for the search.” The conventional wisdom in the first days following the news from Mar-a-Lago was that the incident had all but locked up the 2024 nomination for Trump; my sense was that it would actually benefit Ron DeSantis long-term by strengthening his claim that he’s more electable in a general election. The more blameworthy Trump seems in the documents kerfuffle, the better I feel about that prediction.

I’ll leave you with this. Said a Twitter pal who watched the clip, “I see Karl Rove’s lips moving but I hear Ron DeSantis. There is a subtle game being played here.” No kidding.

Fox anchor: they could have just asked for the docs back
Rove: “My sense is they were asking for a year and a half, and why he was holding on to these materials when he had no legal authority to do so under the Presidential Records Act is beyond me.”

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— Helen Kennedy 🌻 (@HelenKennedy) August 26, 2022