“Novel legal theory,” a term applied in whole or part to every case, criminal and civil, lodged against Donald Trump. That term is best understood as using the law in ways it was never intended to be used, and/or never has been used, most specifically for political purposes. A "novel legal theory" might consist of applying a vicious dog ordinance to someone who owned only a parrot that could bark like a dog.

During my police career, professional officers were careful never to use the law in that way. If there was a law on the books that had never been applied to anyone, they wouldn’t use it either. If there was the slightest hint of political bias in an arrest or prosecution, police supervisors, or failing that, prosecutors, would dump the case. They would do the same for even the appearance of selective prosecution. But that was before Donald Trump and the fierce necessity of saving “our democracy,” a tyranny of the majority. Now it seems at least one judge might be returning to the ethics of those thrilling days of yesteryear. 

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The judge overseeing former President Donald Trump’s Florida case questioned during a Thursday hearing why he was the only president who has been charged over his handling of classified material, according to multiple reports.

During a hearing to consider various motions Trump filed to dismiss the case, Judge Aileen Cannon noted no former president had similarly faced criminal charges over the handling of classified material, according to NBC News. Trump’s attorneys brought up special counsel Robert Hur’s report finding evidence President Joe Biden willfully kept classified documents, but declining to charge him, according to CNN.

“Even with other former presidents, there was never a situation remotely similar to this one,” prosecutor Jay Bratt told Cannon, according to CNN.

Bratt is not conceding the issue, but arguing that unlike every former president who kept classified materials, Trump did far, far worse. He obstructed justice and…other stuff.

How did he obstruct justice? The Presidential Records Act, adopted in 1978, allows presidents to declassify and keep anything they chose. It defines no formal process for declassification. Only presidents have this authority, and any arguments under the Act are a civil, not a criminal, matter. Trump’s lawyers were continuously negotiating with the National Archives, and the materials were under constant Secret Service protection in a single place, unlike Joe Biden, who never had authority to have such materials and kept them for 40 years(?!) in as many as seven, unsecured places to which innumerable, unknowable people had access.  Trump even gave the FBI full access, personally told them to let him know if they needed anything else, and added an additional lock when they later asked for one. The DOJ also has a policy never to prosecute a political candidate during an election, but this case is different because Trump. It’s rather hard for the rational person to see how that constitutes obstruction of justice, but Trump Derangement Syndrome sufferers see things differently than the sane.

Bratt is right about one thing, however: never in history has the FBI raided a former president’s home, denied his lawyers access to the raid, staged photos to try to convince the public Mr. Trump left classified documents lying about on the floor, surrounded the home with long gun-armed and body-armored agents and rifled through a former First Lady’s dresses and underwear.

Two more recent cases illustrate the “novelty” of the Trump case. Hillary Clinton kept private servers in her home for the express purpose of avoiding federal transparency laws, on which classified documents were kept. She actually obstructed justice at every turn, and at her direction, evidence was destroyed. Former FBI Director James Comey admitted she violated multiple laws, but gave her a pass, something he had no authority to do. Joe Biden, who like Clinton never had authority to keep classified materials, kept them, unsecured, for 40 years. Prosecutor Robert Hur admitted Biden too violated multiple federal laws, but wouldn’t prosecute him because he’s too senile and just so darned loveable no jury would convict him.

Hur is probably right no DC jury would convict him, but because he’s a Democrat, and in DC, Democrats are immune from such trivial things.

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The documents case against Trump should never have been filed, and it’s possible Judge Cannon will dismiss it on the grounds that concern her. However, the process is the punishment, and the timing of the prosecutions—no coincidence—is clearly designed to hurt Trump politically, and to help lovable, senile Joe.

That’s novel too.

Mike McDaniel is a USAF veteran, classically trained musician, Japanese and European fencer, life-long athlete, firearm instructor, retired police officer and high school and college English teacher. He is a published author and blogger. His home blog is Stately McDaniel Manor.