Thinking Through the Trump Search

I want to start with a warning. This is going to be a thoroughly unsatisfactory newsletter. I’m going to talk about the FBI search of Trump documents at Mar-a-Lago, and I’m not going to have any answers at all. I’m barely going to speculate. But I’ve seen enough sheer nonsense online that I think it’s necessary to weigh in with a few thoughts to make sense of what occurred and what happened next. 

Let’s do this in question-and-answer format.

Why did the FBI search Mar-a-Lago? 

We don’t really know. As of the time of writing, neither the search warrant nor the application for the warrant have been released into the public domain. All we have is reporting from anonymous sources that the raid was apparently related to documents Trump removed from the White House as he left office. For example, here’s how the Washington Post began its coverage this morning:

Former president Donald Trump’s residence at his Mar-a-Lago Club in Palm Beach, Fla., was searched Monday by the FBI in what appeared to be part of a long-running investigation of whether documents—some of them top-secret—were taken there instead of being sent to the National Archives when Trump left office.

As Maggie Haberman reports in the New York Times, the search came after Trump had “delayed returning 15 boxes of materials” requested by the National Archives and after federal agents (including a counterintelligence official) visited him earlier this spring “to discuss materials that Mr. Trump had improperly taken with him when he left the White House.”

But consider me skeptical that we have the full explanation for the search. I just finished recording an emergency Advisory Opinions podcast with Sarah Isgur—who just so happens to be a former senior Department of Justice official—and she rightly observed that there are a number of ways of securing classified information without executing a search warrant against a former president and seizing the documents. 

There is technically no problem with such an action, but practically, if you’re going to take law enforcement actions that get “civil war” trending on Twitter, then the alleged underlying offense should rise to a certain level of seriousness. 

Wait a minute—if this is about classified documents, don’t presidents have the final say? 

Yes, presidents do have absolute authority to declassify documents. In theory, a president could decide to declassify our most sensitive intelligence and dump it onto Twitter. That would be unwise, and it might even be an impeachable abuse of power if he or she harmed national security, but it would not be illegal.

The key word, however, is “presidents.” A former president has the same classification authority that I do—absolutely none. But here’s where things get dicey. What does the DOJ say to a former president who says, “I declassified that before I left office”? The DOJ might demand proof of declassification (and there should be a paper trail), but the sheer extent of a president’s classification authority complicates an investigation into alleged mishandling of classified information. It’s just a more complicated case than investigating even a former secretary of state, national security adviser, or CIA director. 

The DOJ wouldn’t execute a search warrant unless it had the goods on Trump, would it? 

Don’t make that assumption! Don’t make assumptions, period. Don’t assume corruption or incompetence, and don’t assume integrity or competence. Our system has two great virtues—procedural safeguards and ultimate burdens of proof—but neither of those guarantees government virtue, not even in the most high-profile cases.

To obtain the current search warrant, the investigating officials had to jump through a number of hoops. First, they had to satisfy the normal process, which requires putting together a warrant application that includes a sworn affidavit outlining the evidentiary and legal basis for the request.

I’m seeing lots of chatter that the DOJ had to possess probable cause that Trump committed a crime before it could obtain a warrant. That’s not necessarily true. The question is whether agents have probable cause to believe the place contains items/evidence connected to specific crimes. This is a meaningful distinction; the DOJ could execute a warrant searching for drugs in my crawl space even if they have no reason to believe I put them there or know they exist.

For “normal” warrants, the application receives sign-off at relatively low levels of the DOJ and then is submitted to a U.S. magistrate judge who reviews the application, determines if it meets the necessary legal thresholds, and then (if it does) issues the warrant.

For a presidential warrant, it’s safe to presume that approval requires sign-off by both the FBI director (a Trump appointee and member of the Federalist Society) and the attorney general (a Biden appointee, former federal court of appeals judge, and Obama nominee to the Supreme Court). We don’t know exactly what happened yet, but it’s hard to imagine that the search was executed absent agreement by both senior officials. 

Twitter is telling me that this document issue can disqualify Trump from the presidency. Is that true? 

Nope. A number of attorneys have referred to 18 U.S.C. Section 2071, which has language that, taken on its own, would seem to indicate that a conviction could block a future Trump presidency:

Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States. (Emphasis added.)

Yet the qualifications for the president are defined by the Constitution, not by federal statute. Congress can’t disqualify a person whom the Constitution qualifies. And while that assertion would be litigated if Trump were convicted of crimes under the statute, I feel quite confident the constitutional standards would prevail. 

The truly important portion of the statute is the potential prison sentence, not the disqualification for office. But let me state now, for the record, that I would be shocked if the DOJ sought to prosecute Trump for removing records absent the most unusual and compelling reasons. If it chose to do so, it would make a serious mistake—especially given previous DOJ decisions not to prosecute Hillary Clinton and to (very) lightly punish other senior officials for brazen destruction and mishandling of classified information. 

You’re disappointing me, French. If you don’t know much about the search, how can I learn more? 

The key relevant documents are the warrant application and the search warrant itself. The DOJ does not release warrant applications or warrants in ongoing investigations. There are generally quite good reasons for this. Releasing such information immediately places a cloud of suspicion over private citizens who haven’t even been charged for a crime, much less convicted.

It is true that the FBI departed from standard protocols when it investigated Hillary Clinton. The famous James Comey press conference detailing both Hillary Clinton’s mishandling of classified information and the FBI’s decision not to recommend charges and the Comey letter announcing the re-opening of the investigation weeks before the election were well outside the norm. One can both understand why Comey did what he did and see the obvious consequences. There’s good evidence that the Comey letter is a key reason Clinton lost the election.

The DOJ should stick to protocol. But it’s worth noting that protocol includes handing the Trump team a copy of the search warrant itself. It doesn’t contain as much information as the warrant application, but it does identify the key criminal statutes at issue and the items sought to be searched or seized. Trump can choose to release that document at any time. Here’s Sarah:

Ok, one last thing—what happens if the FBI searches for one thing and finds another? What if it looks for classified information but stumbles on January 6 documents? 

My old friend (and former federal prosecutor) Andy McCarthy wrote a much-shared piece speculating that the FBI might have executed a search for documents, perhaps hoping to discover January 6 material. Here’s how Andy’s piece starts:

There’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.

Andy thinks this is exactly what’s happening. The search for documents:

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.

I raise this because already a number of people have asked me about Andy’s piece and because Andy is super-smart. He could be right, but I’m skeptical. He’s describing an extraordinarily high-stakes gamble, executing a warrant on a former president (and current GOP front-runner) for a relatively minor offense in the hopes of incidentally obtaining evidence of much more serious crimes. 

That’s a serious roll of the dice. I’m not saying Andy’s theory is wrong. If he’s correct, then it should shake our confidence in the process. 

My position on both investigating and prosecuting Trump is simple. Two things are true. First, no American is above the law, including presidents and former presidents. Second, we ought not prosecute presidents or former presidents absent overwhelming evidence of guilt under clearly established law. 

A corollary to both points is that public investigative steps—like search warrants—should only be undertaken when the basis for the action is rock-solid. Don’t utilize novel legal theories or shaky evidentiary assertions to pursue a president. You damage the republic if you do. 

So now we wait, and while we wait, we should do what we can to call for calm. I’m seeing an extraordinary amount of irresponsible political rhetoric online, including a number of explicit calls for violence. The last time the MAGA movement reached a fever pitch, thousands of radicals stormed the Capitol. If you tell enough people that the government has “essentially opened fire” against you, some percentage of people will believe those words and act accordingly. 

I’m not worried about “civil war.” The voices calling for war are engaged in Twitter posturing and tough-guy LARPing. They’d be the last people to risk their lives in a real conflict. But I am concerned about a disturbed person (or persons) deciding to take the law into his own hands—on the basis of nothing more than layers of pre-existing grievance mixed with wild speculation. 

This is a perilous time. We can’t control much, but we can decide—to paraphrase Rudyard Kipling—to keep our heads about us, when everyone else is losing theirs. It will be a small act of service to the country we love.