This search was almost certainly about much more than classified documents.
T here’s a game prosecutors play. Let’s say I suspect X committed an armed robbery, but I know X is dealing drugs. So, I write a search-warrant application laying out my overwhelming probable cause that X has been selling small amounts of cocaine from his apartment. I don’t say a word in the warrant about the robbery, but I don’t have to. If the court grants me the warrant for the comparatively minor crime of cocaine distribution, the agents are then authorized to search the whole apartment. If they find robbery tools, a mask, and a gun, the law allows them to seize those items. As long as agents are conducting a legitimate search, they are authorized to seize any obviously incriminating evidence they come across. Even though the warrant was ostensibly about drug offenses, the prosecutors can use the evidence seized to charge robbery.
I believe that principle is key to understanding the FBI’s search of former president Donald Trump’s Mar-a-Lago estate in Florida on Monday. The ostensible justification for the search of Trump’s compound is his potentially unlawful retention of government records and mishandling of classified information. The real reason is the Capitol riot.
The Justice Department is not ready to charge Trump for the riot. It lacks proof that he is criminally culpable for the violence. As for the non-violent potential crimes it is investigating — obstruction of Congress and conspiracy to defraud the government — these are based on disputed theories that Trump and his apologists could persuasively frame as a partisan weaponization of the Justice Department against the likely 2024 GOP nominee. Consequently, the DOJ does not want to suggest that Trump is the subject of a criminal investigation related to the Capitol riot. Nor does it want to be perceived as having told a court it has probable cause tying Trump to Capitol riot crimes.
Nevertheless, prosecutors investigating did want to search Trump’s premises for potential evidence of Capitol riot crimes. The former president’s apparent violations of government records and classified information laws gave the DOJ the pretext it needed.
You’ll hear the bracing word raid attached to the search. Don’t be misled. This was not a raid, in the sense of a lawless break-in. The FBI conducted a court-authorized search. For the FBI to have a search warrant, a federal prosecutor first had to write a search-warrant application, sworn to by an FBI agent, which convinced a federal judge that (a) one or more crimes probably occurred and (b) it was probable that evidence of those crimes would be found in the place the Justice Department was asking to search.
Search-warrant applications are filed with the court and remain sealed unless and until charges are ultimately filed. Usually, if you could read the warrant application the prosecutor wrote, you would know what possible crimes were under investigation. Usually, but not always.
No former U.S. president has ever been indicted by the Justice Department. I do not believe the DOJ contemplates prosecuting a former president for mishandling classified information, much less purloining other government records. I especially doubt it when we are talking about a former president who could be the Republican candidate opposing the incumbent Democratic president in the next election. After all, the Obama/Biden administration did not charge Hillary Clinton with mishandling classified information, rationalizing that doing so would amount to a constitutionally offensive selective prosecution since such misconduct is often overlooked.
Still, regardless of whether the DOJ actually intends to prosecute a classified-information offense, mishandling classified information is still a federal crime. And a federal crime — any federal crime — can be the predicate for a U.S. court-authorized search warrant.
President Trump’s departure from the White House was chaotic. It occurred abruptly, in the aftermath of the Capitol riot, during the brief consideration of removing him under the 25th Amendment and the House’s voting of an impeachment article. Trump was not planning to leave. When he agreed to do so, over a dozen boxes were haphazardly packed and shipped from the White House (in particular, the residence) to the Trump estate in Florida.
It has long been reported that some of these boxes contained classified information. There was concern during Trump’s term about his toting classified documents from the Oval Office to the residence because he was not careful (to put it mildly) about how they were handled and stored. After his tumultuous departure, National Archives officials complained that the former president had retained documents that were required to be stored in the Archives under the Presidential Records Act.
Long negotiations followed. Eventually, Trump returned over a dozen boxes that reportedly contained classified information. We don’t know the status of these materials, but a president may only declassify information while he is president. If, prior to leaving office, Trump had failed to declassify the documents he allegedly retained, then he had no authority to do so after his term ended. Ergo, from the DOJ’s perspective, there was a probability that the classified documents Trump returned had for months been kept in an unauthorized place. Moreover, because Trump did not return to the National Archives everything that was shipped to Mar-a-Lago in January 2021, he likely still has classified documents it may be unlawful for him to possess.
As a prosecutable crime, I am betting the Biden Justice Department is not very interested in this. The DOJ is very interested, however, in the Capitol riot, and it is under intense pressure from the Democratic base to charge Trump with crimes arising out of it.
In the absence of strong evidence proving that Trump was criminally complicit in the violence (i.e., that he conspired in or willfully abetted the use of force), it would be highly controversial ––as I’ve maintained, it would be a profound mistake — to indict Trump for a non-violent crime. That’s because the potential non-violent charges — e.g., corruptly obstructing congressional proceedings (the January 6 joint session to count electoral votes) or conspiring to defraud the United States government — would amount to criminalizing a frivolous legal theory (specifically, the theory that Vice President Pence had unilateral authority to discount electoral votes, or at least remand them back to the contested states for an audit).
Ordinarily, we give bad legal theories a wide berth. If Trump, to the contrary, were to be charged, the DOJ would in effect be saying that the evidence is overwhelming that Trump and his underlings knew the “stolen election” claims they were so aggressively pushing had absolutely no basis in fact or law — i.e., at some vague point, this “stop the steal” enterprise evolved from being just a bad legal theory into an actionable criminal fraud.
The Democratic base badly wants Trump to be charged with felonies. So does the House January 6 committee, heavily amplified by the media-Democrat complex. I am also quite sure that within the Justice Department, high-ranking officials are urging Attorney General Merrick Garland that the equities favor indicting Trump because he persists in the stolen-election claims — arguing that a successful prosecution would put these divisive claims to rest.
Nevertheless, Garland and his top advisers know it’s not that simple. If the Capitol riot had not happened, there would have been no thought of indicting Trump over the futile, half-baked “stop the steal” scheme. Because of the riot, the scheme is more condemnable, but the DOJ still can’t tie Trump to the riot. Meantime, if the DOJ were to charge Trump with anything less than a slam-dunk case, and especially on one that smacked of selective prosecution, there would be an eruption of protest. The Justice Department’s legitimacy, which hinges on the public’s acceptance of it as a non-partisan law-enforcer, would be at risk. If Garland is going to charge the former president, he has to be sure. He has to be able to convince the country that the public interest strongly favors prosecution.
On that score, I’d ignore speculation that prosecutors have seized on potential classified information charges because one statute, Section 2071(b) of the federal penal law, prescribes a penalty that includes disqualification from federal office. The Justice Department is well aware that the qualifications for the presidency (namely, one must be at least 35 years old and a natural-born citizen) and for disqualification from the presidency (conviction by the Senate on an impeachment article voted by the House) are set forth in the Constitution. Congress cannot alter constitutional provisions by enacting a mere statute. A president cannot be automatically disqualified from office on a comparatively trivial classified information offense any more than he could for a more serious crime, such as seditious conspiracy or murder. To make conviction of a crime disqualifying, the Constitution would have to be amended.
No, the Justice Department is trying to make a Capitol riot case, but Garland is not sure at this point that he has one he’s comfortable bringing. And since it would be explosive to signal that Trump is the subject of a Capitol riot investigation, the DOJ is trying to investigate him as such without saying so.
In late June, I referred to a “stealth inspector-general investigation of Donald Trump.” The FBI had suddenly executed search warrants for (a) the home of former DOJ lawyer Jeffrey Clark, who colluded with then-President Trump in an ultimately abandoned plan to convince states, falsely, that the DOJ had uncovered real evidence of election fraud; and (b) the cellphone of John Eastman, the constitutional-law scholar and putative architect of Trump’s scheme to convince Pence to discount electoral votes. Since these searches were pursuant to warrant, one would have assumed that the DOJ had convinced a court that there was probable cause of crimes — obstruction of Congress and fraud on the government. But at least according to the reporting, the pretext for the searches was an internal investigation, by the DOJ’s inspector-general, of whether Clark’s conduct had violated DOJ rules and regulations.
Clark hadn’t been a DOJ official for over a year. Eastman was not a DOJ official at any relevant time. If you think the DOJ is investigating mere bureaucratic irregularities, I’ve got a bridge in Brooklyn you might like to buy. No, the DOJ was using the pretext of investigating bureaucratic irregularities to conduct a search for evidence of Capitol-riot-related crimes. The DOJ just issued grand-jury subpoenas to a pair of Trump’s White House lawyers – Pat Cipollone and Patrick Philbin – for one reason and one reason alone: It is trying to make a case against Trump on Capitol-riot-related crimes.
Same thing with the Trump search.
For months, the Justice Department has had in its hip pocket a probable crime, the mishandling of classified documents, that could be used as a justification for searching Donald Trump’s estate. But in searching the estate, I don’t believe the FBI was looking for classified documents or other missing government records — not really. Just as in the searches of Clark and Eastman, the Bureau and Justice Department prosecutors were looking for evidence powerfully showing that the former president and his confederates knew their stolen-election claims were false. That’s what the DOJ needs, at a minimum, to indict Trump for crimes arising out of the January 6 uprising.
In a powder keg, AG Garland is trying to turn up a smoking gun. Unless he can make a convincing violent-crime case against Trump, though, an indictment based on extravagant theories of fraud or mishandling of classified documents will blow up on the Justice Department.