Well, 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 deniedhaving any advanced notice of the raid.
The condemnation from conservative circles was immediate.
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.”
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Sen. Rick Scott, R-Fla., the chair of the National Senatorial Committee, accusedthe 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 that the FBI has been enforcing the law in politically sensitive cases in a partisan manner to the detriment of Republicans. Their suspicions are not unwarranted.
There was the abuse of the Foreign Intelligence Surveillance Act process and the failure to vet the salacious and spurious Steele Dossier, a document that had been bought and paid for by the Hillary Clinton campaign, that led to a meritless investigation of the Trump campaign for alleged collusion with the Russian government.
That “Big Lie,” spearheaded by blatant Trump-hating partisans such as Andrew McCabe, Peter Strzok, and Lisa Page, dogged the Trump administration and led many liberals to question the legitimacy of the outcome of the 2016 election, although they clutch their pearls when anybody questions the outcome of the 2020 election.
Just a couple of weeks ago, Sen. Chuck Grassley, R-Iowa, grilled Wray about information he received from whistleblowers. The whistleblowers said that an FBI analyst who posted anti-Trump messages on social media and who was instrumental in promoting the false collusion claim also tried to discredit and shut down the investigation against 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 were quick to note that the FBI never searched the Chappaqua, New York home that Hillary Clinton shared with another former president, even after it had been revealed that she had installed a server in that home that she used to receive classified information from her time as secretary of state.
Perhaps they should have seized that server, since the hard drive was wiped clean. Clinton’s aides destroyed her mobile devices with a hammer, and her attorney deleted approximately 33,000 emails which she claimed were all personal. Clinton, of course, was never charged with a crime.
Here’s what we know about the FBI and Trump.
In early February, the National Archives and Records Administration (NARA) retrieved 15 boxes of documents that Trump had stored at Mar-a-Lago, including communications that he had with North Korean leader Kim Jong Un, and a letter from his predecessor, Barack Obama. The documents were voluntarily turned over.
Questions were raised at the time about whether Trump had complied with the Presidential Records Act of 1978, which generally requires the archivist of the United States (who at the time was David Ferriero) to maintain presidential records. The Presidential Records Act was enacted after President Richard Nixon sought to destroy records from his time in office following his resignation in 1974.
Shortly thereafter, and in response 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.”
In June 2018, NARA learned from a press report in Politico that textual Presidential records were being torn up by former President Trump and that White House staff were attempting to tape them back 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. Although White House staff during the Trump Administration recovered and taped together some of the torn-up records, a number of other torn-up records that were transferred had not been reconstructed by the White House.
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, who was served with a grand jury subpoena, is said to have 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 reportedthat one of Trump’s lawyers subsequently wrote a letter indicating that there was no more classified information at Mar-a-Lago. On June 22, the Trump Organization was served with a subpoena for security camera footage at Mar-a-Lago, which was turned over to the authorities. That was the last official action before last Monday’s raid.
So, what happened?
It has been reported that a confidential informant told law enforcement authorities that Trump was not telling the truth about having turned over all classified information in his possession. It has also been 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.
The informant is said to have described the nature and the location of the material still at Mar-a-Lago. It has also been reported that the material in question pertained to nuclear weapons, and there is some language in the warrant itself to suggest this may be correct.
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 has now been unsealed, describes the nature of the material that was being sought, the locations they were likely to be found, and the crimes to which that material would pertain.
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 what was seized has also been unsealed. 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.
The agents appear to have removed 27 boxes of documents, a couple of binders with photographs, some handwritten notes, and, curiously, information pertaining to the president of France and to a grant of executive clemency to Roger Stone (whose sentence was commuted by Trump, who ultimately pardoned Stone).
Some of the documents seized apparently bore classification markings at the “Confidential,” “Secret,” “Top Secret,” and “SCI” level. Each label is supposed to convey the level is of harm that could reasonably be expected to 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) describes classified information that is derived from or relates to sensitive intelligence sources, methods, or analytical processes.
The warrant delineates three potential crimes: misuse of national defense information (18 U.S.C. § 793; which is part of 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.”
Therefore, some might argue that if he is convicted of this crime, Trump would be barred from running again for president. While facially appealing, this statute would likely not apply to someone seeking the presidency 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. As the Supreme Court said in 2010 in Free Enterprise Fund v. Public Company Accounting Oversight Bd., “The people do not vote for the ‘Officers of the United States.’”
Second, the qualifications to run for president are set forth in Article II of the Constitution.
Congress may not add to or subtract from those qualifications set forth in the Constitution via a statute. The Supreme Court made this clear in 1995 in U.S. Term Limits v. Thornton, in which the court struck down a state stature adding term limits as an additional (dis)qualification to run for Congress beyond those prescribed in 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,” according to Merrick Garland.
That is certainly plausible.
Indeed, Trump is now claiming that some of the documents that were seized are covered by the attorney-client privilege, which adds some 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. For example, if law enforcement officials were executing a search warrant for narcotics in the home of a convicted felon, they would be able to seize weapons or child pornography if those items were in plain view while the search was being conducted.
At Mar-a-Lago, the agents were authorized to search for documents that constituted Presidential Records and or contained classified information. 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. Following the raid, Trump put out a 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 liaisons to the National Archives who also served in several senior positions during the Trump administration, including Chief of Staff at the Pentagon, principal deputy to the acting director of national intelligence, and a former National Security Council aide, is supporting this claim.
“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 a series of executive orders pertaining to the classification and declassification of documents, as a general matter, presidents have broad declassification authority.
For example, in May 2004, President George W. Bush unilaterally 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.”
Similarly, on Sept. 24, 2019, Trump unilaterally declassified the transcribed notes of his controversial July 25 conversation with Ukrainian President Volodymyr Zelensky, following a whistleblower complaint that was made public.
Commentators have noted over the last several days that if the material in question pertains to nuclear weapons, the Atomic Energy Act of 1946 requiresthe concurrence of the Department of Energy and the Director of National Intelligence before such material—referred to as “restricted data” —can be declassified.
As discussed above, however, a statute cannot trump the Constitution. In 1988, in 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 the 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. The authority to protect such information falls on the president as head of the Executive Branch and as commander in chief.
So while Richard Immerman, who served as an assistant deputy director of national intelligence in the Obama administration, 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.
That being said, even though Trump may well have exercised his declassification authority in a slipshod and imprudent manner, he probably has the 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 may well pose a big hurdle for the Justice Department if it decides to file charges against Trump.
So 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.
Ultimately, the Department of Justice will decide whether to file charges against Trump, which would be yet another unprecedented action that would involve trying to untangle many knotty factual and legal questions, only some of which are outlined above.
Depending on the nature of the documents, the Justice Department may decide that, despite the existence of the Classified Information Procedures Act, a statute designed to cover how classified information should be handled during a criminal trial, the risk of disclosure of sensitive information is simply too high to warrant charging Trump with a crime and bringing the case to trial.
The government often seeks to avoid exposure in such instances, as was the case with Robert Hanssen and Aldrich Ames, who reached plea deals designed to avoid disclosing the information they had provided to the Russians and to obtain their cooperation to assess and mitigate the damage they had caused.
Congress may also wish to probe some of these issues as well. The public has a lot of questions about whether the Justice Department and the FBI have, in fact, been wielding their vast power in a politically partisan manner, and they deserve to get answers to those questions.
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.
John G. Malcolm is the vice president of the Institute for Constitutional Government and director of the Edwin Meese III Center for Legal and Judicial Studies, overseeing The Heritage Foundation’s work to increase understanding of the Constitution and the rule of law. Original here. Reproduced with permission.