It was quite a week! On Aug. 8, roughly 30 federal agents executed a search warrant at Mar-a-Lago, the Florida home of former President Donald Trump – an unprecedented action.
While Attorney General Merrick Garland and FBI Director Chris Wray have acknowledged approving the filing of the search warrant application–which was approved by a federal magistrate judge–President Joe Biden has deniedNotifying the raid in advance
The condemnation of conservative circles was instant.
House Minority Leader Kevin McCarthy stated, “The Department of Justice has reached an intolerable state of weaponized politicization.” He promised vigorous oversight hearings should Republicans take control of the House of Representatives following the upcoming mid-term elections, adding, “Attorney General Garland, preserve your documents and clear your calendar.”
Senator Rick Scott (Republican from Florida), is the National Senatorial Committee’s chair. accused the Biden administration of going after a political opponent and said that the raid on Mar-a-Lago was “incredibly concerning” and “Third World country stuff.” Sen. Rand Paul, R-Ky., labeled the raid, “outrageous and unjust, but predictable.” Sen. Ted Cruz. R-Texas, said, “What Nixon tried to do, Biden has now implemented: The Biden admin has fully weaponized DOJ & FBI to target their political enemies.”
And Heritage’s president, Kevin Roberts, said, “The Biden administration and the D.C. swamp are making it very clear that they will use all the power of the state to intimidate anyone who stands in their way,” adding, “If they think they can treat a former president this way, imagine what they think they can do to the average American.”
There are, of course, large numbers of people–mostly conservatives–who do not trust the FBI, the most powerful law enforcement agency in our country. They believe the FBI has been violating the law in politically sensitive cases by acting in a partisan way to the detriment and benefit of Republicans. They are not wrong to be concerned.
There was abuse of the Foreign Intelligence Surveillance Act and failure to vet the spurious and salacious. Steele DossierThis document, which was bought and paid for in part by the Hillary Clinton campaign, led to a meritless investigation into the Trump campaign’s alleged collusion with Russia.
That “Big Lie,” spearheaded by blatant Trump-hating partisans such as Andrew McCabePeter Strzok and Lisa Page criticized the Trump administration and led liberals to question the legitimacy and outcome of 2016. However, they hold their pearls when anyone questions the outcome for 2020.
A few weeks ago, Sen. Chuck Grassley (R-Iowa) questioned Wray about information he had received from whistleblowers. According to whistleblowers, a former FBI analyst who posted antiTrump messages on social networks and was instrumental in promoting the false colusion claim also attempted to discredit and close down the investigation into Hunter Biden. Hunter’s activities may involve business dealings he had with foreign entities that could also have benefitted his father, in the run-up to the 2020 election.
Others pointed out that the FBI never searched Hillary Clinton’s Chappaqua home in New York. This was despite it being revealed that Clinton had installed a server there that she used to receive classified data from her time as secretary.
Perhaps they should have taken that server, as the hard drive was not working. wiped clean. Clinton’s aides destroyedHer attorney hammered her mobile devices and deleted approximately 33,000 emails that she claimed were personal. Clinton was not charged with any crime.
Here’s what we know about the FBI and Trump.
In February, the National Archives and Records Administration (“NARA”) was inaugurated. retrievedTrump had 15 boxes of documents at Mar-a-Lago. These included communications with North Korean leader Kim Jong Un and a letter from his predecessor Barack Obama. They were turned over voluntarily.
At the time, questions were raised about whether Trump had followed the instructions. Presidential Records Act1978, which generally required the archivist of America (at the time David Ferriero), to maintain presidential records. After President Richard Nixon’s resignation in 1974, the Presidential Records Act was created.
Shortly thereafter, and in reply to Rep. Carolyn Maloney (D-N.Y.), Chair of the House Oversight Committee. The archivist stated in a letter that NARA had “identified items marked as classified national security information within the boxes.”
He also added:
NARA was informed by Politico in June 2018 that textual Presidential records had been torn up and that staff at the White House were trying to tape them together. … After the end of the Trump Administration, NARA learned that additional paper records that had been torn up by former President Trump were included in the records transferred to us. While some records that were torn up by Trump’s staff were taped and recovered by White House staff, many of the other records that were transferred were not reconstructed.
On June 3, Jay Bratt, the Chief of the Counterintelligence and Export Control Section of the Justice Department’s National Security Division, accompanied by three FBI agents, paid a visit to Mar-a-Lago. Trump was served with a grand jury subpoena. told the group “I appreciate the job you’re doing,” adding: “Anything you need, let us know.”
The group was then shown boxes of documents in a basement storage area and departed with several documents marked “top secret.”
Several days later, Bratt sent a letter to one of Trump’s lawyers requesting that a stronger lock be placed on the door, which was done. It has been reported that one of Trump’s lawyers subsequently wrote a letter indicating that there was no more classified information at Mar-a-Lago. On June 22, Trump Organization received a subpoena requesting security camera footage at Mar-a-Lago. It was turned over to authorities. That was the last official action before last Monday’s raid.
So, what happened?
According to some reports, a confidential informant said that Trump wasn’t telling the truth about not having turned over all classified material in his possession. It has also been reported. reported that the security camera footage revealed that boxes were moved into and out of the storage room after the Justice Department contacted Trump’s team about the boxes still in his possession.
According to reports, the informant described the nature and location of the material at Mar-a-Lago. It was also reported that the material in issue belonged to nuclear weaponsThis is possible because the warrant language suggests that it may be true.
Of course, this is all speculation—and fodder for selective leaking—since the underlying affidavit that was filed to support the issuance of the search warrant is still under seal, and will likely remain so for some time, if not permanently.
The warrant itself, which is now in effect, has been unsealedThis describes the nature of the material being sought, the likely locations and the crimes that this material might be used for.
The warrant authorized the agents to search “45 Office” (a likely reference to Trump being the 45th president) as well as all storage rooms and all other rooms used by the former president and his staff in which documents could be stored, specifically excluding areas occupied or used by third parties “such as Mar-a-Lago Members” and not generally available to Trump and his staff, “such as private guest suites.”
The items that the agents were authorized to seize included “documents with classification markings” and any boxes in which such items were found, “Information … regarding the retrieval, storage, or transmission of national defense information or classified material,” “Any government and/or Presidential Records” created while Trump was in office, and “Any evidence of the knowing alteration, destruction, or concealment of” any documents falling within these categories.
The inventory of the seized items has not been released. Although the descriptions of what was seized are vague – which is not surprising given that it is alleged to be classified material – but there are tidbits of information that give us clues.
27 boxes of documents were apparently removed by the agents, along with a few binders containing photographs and handwritten notes. Curiously, there was also information pertaining to Roger Stone, the president of France, and to a grant for executive clemency. commutedTrump, who eventually pardoned Stone).
Some of the documents seized apparently bore classification markings at the “Confidential,” “Secret,” “Top Secret,” and “SCI” level. Each label should indicate the degree of harm that can reasonably be expected. occur if they were disclosed without authorization, as follows: Confidential (“damage to the national security”), Secret (“serious damage to the national security”), and Top Secret (“exceptionally grave damage to the national security”). Sensitive Compartmented information (SCI). describesInformation classified that is derived from sensitive intelligence sources, methods, and analytical processes or related to them
The warrant defines three possible offenses: misuse of national defence information (18 U.S.C. § 793; which is part the Espionage Act), obstruction of justice by destroying, altering, or falsifying records in connection with a federal investigation (18 U.S.C. § 1519), and concealing, removing, or destroying protected federal documents (18 U.S.C. § 2071).
The last of these has a particularly interesting wrinkle in that it provides that anyone convicted of this crime “shall … be disqualified from holding any office under the United States.”
Many might argue that Trump could not run again for president if he is convicted. This statute, while appealing on the surface, would not likely apply to someone seeking to run for president for at least two reasons.
First, under the Constitution, the president is not considered an “officer of the United States,” a phrase reserved for federal judges, cabinet appointees, and other unelected, high-ranking federal officials. The Supreme Court made this clear in 2010. Free Enterprise Fund v. Public Company Accounting Oversight Bd., “The people do not vote for the ‘Officers of the United States.’”
Second, Article II of Constitution sets forth the qualifications required to run for the office of president.
Congress cannot add to or subtract qualifications from the Constitution by way of a statute. In 1995, the Supreme Court made this clear. U.S. Term Limits v. Thornton, in which the court upheld a state status adding term limits as an additional (disqualification) to run for Congress beyond the Constitution.
Some have speculated that the government was not really after classified records at all or only peripherally, and that the real motivation for the search was to look for documents related to the events of Jan. 6, 2021, where it is known that the Justice Department is conducting “the most wide-ranging investigation in its history,” accordingMerrick Garland
This is definitely possible.
Trump is, indeed. claimingThe attorney-client privilege covers some documents that were seized, which lends credence to this theory.
It is well established in the law that agents executing a search warrant are authorized to seize any evidence of a crime that is in “plain view,” even if that evidence is unrelated to the crime that served as the justification for obtaining the warrant in the first place. If a search warrant was issued for narcotics at the home of a felon, law enforcement officers would be able seize weapons and child pornography if they could see them during the search.
Mar-a-Lago agents were authorized to search documents that contained classified information or Presidential Records. If in the process of reviewing documents to see whether the contents fit those categories, they discovered that the documents contained evidence of some other alleged crime—perhaps related to the Jan. 6 investigation—they would and likely could seize them.
One complicating factor for the Justice Department is Trump’s claim that the documents that were seized did not contain classified information because he had declassified them while he was still president. Trump released a statement after the raid. statement through John Solomon, one of Trump’s designated liaisons to the National Archives, that in order to prepare for work the next day, he often took documents, including classified documents, to his residence, and that “[h]e had a standing order that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.”
Kash Patel, another of Trump’s designated liaisonsThis claim is supported by the National Archives, who are former National Security Council aides and principal deputy of the acting director for national intelligence.
“Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves,” Patel told Breitbart News.
Although there are several executive orders that govern the classification and declassification documents, the president has broad declassification authority.
For example, in May 2004, President George W. Bush unilaterally did it. declassified a portion of his presidential briefing from Aug. 6, 2001—a month before the 9/11 terrorist attacks—in which he had been warned that Osama bin Laden was determined to strike the United States and that the FBI had detected “patterns of suspicious activity in this country consistent with preparations for hijackings.”
Similar, Trump unilaterally declared his support for the repeal of the Affordable Care Act on Sept. 24, 2019. declassifiedThese are the transcriptions of his July 25 conversation, which he had with Ukrainian President Volodymyr Zelesky. They were obtained following a whistleblower complaint.
Commentators have observed that, if the material involved is nuclear weapons, the Atomic Energy Act of 1945 has been cited as the reason. requiresThe concurrence of the Department of Energy and the Director of National Intelligence before such material—referred to as “restricted data” —can be declassified.
However, a statute cannot override the Constitution, as we have already discussed. In 1988, Department of the Navy v. Egan, the Supreme Court made clear that the president’s authority to classify, and presumably to declassify, material is derived from his authority under Article II of the Constitution. The court stated (omitting citations):
The president, after all, is the “Commander in Chief of the Army and Navy of the United States.” His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the president, and exists quite apart from any explicit congressional grant. This court has recognized the government’s “compelling interest” in withholding national security information from unauthorized persons in the course of executive business. As commander in chief and head of the Executive Branch, the president has the authority to protect such information.
Richard Immerman, an assistant deputy director for national intelligence in the Obama administration served as this. says that while a president has authority to declassify documents, “He can’t just wave a wand and say it’s declassified.”
Trump says that “The power to classify and declassify documents rests solely with the President of the United States,” and that “The idea that some paper-pushing bureaucrat, with classification authority delegated by the president, needs to approve of declassification is absurd.”
Of course, Trump could have avoided all of this had he set up a formal, expedited process to declassify documents in conjunction with his White House Counsel’s office.
Despite Trump’s inept and imprudent use of his declassification authority, he likely has a better legal argument. After all, a president can unilaterally pardon someone just by saying, “I pardon you for the crime of [X].” While signing a formal document may make it easier to prove that the president did, in fact, pardon that individual should a question arise about it, the signing of any document is not necessary for the pardon to be effective from a legal standpoint. This could prove to be a significant obstacle for the Justice Department, should it decide to file charges against Trump.
What happens next?
Now that the search has been executed and the documents have been seized, there are likely to be many months of wrangling ahead between the Justice Department and Trump’s attorneys.
Final decision by the Department of Justice on whether to file charges against Trump will be made. This would be an unprecedented action that would involve trying out many complex legal and factual issues.
The Justice Department may decide, depending on the nature of documents, that the documents are not admissible despite their existence. Classified Information Procedures ActThis statute covers how classified information should be handled in a criminal trial. The risk of revealing sensitive information is too high to warrant Trump being charged with a crime and having the case brought to trial.
In such cases, the government will often try to avoid exposure. This was the case with Robert HanssenAnd Aldrich AmesThey agreed to plea bargains in order to not reveal the information they provided to the Russians, and to get their cooperation to assess the damage they caused.
These issues may also be of interest to Congress. The public has many questions about whether the FBI or Justice Department have been wielding their vast powers in a politically partisan fashion. They deserve to know the answers.
The implications of these bewildering developments for the upcoming mid-term elections and the 2024 presidential election are, of course, anybody’s guess. But in the meantime, buckle up, it’s going to be a bumpy ride.
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