FBI Raids Mar-a-Lago: What Does it Mean?

Sarah and David get together for this special Advisory Opinions crossover episode to discuss the ...

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Sarah and David get together for this special Advisory Opinions crossover episode to discuss the FBI’s search of former President Donald Trump’s home at Mar-a-Lago on Monday. What does it all mean? How does a federal investigation of a senior official work, and what happens next? Plus: some possible theories and explanations that might shed some light on the events of yesterday.

Show Notes:

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  1. Avatar photo
    John Murdock

    Consider digging into 18 USC 2071, one of the statutes noted in the warrant (and quoted below). Note the interesting provision that a person convicted "shall forfeit his office and be disqualified from holding any office under the United States." How this bumps up against the constitutional qualifications for the Presidency could be interesting. I have not dug into the case law on "office" here, but at first whiff this smells like an Advisory Opinions segment to me.

    (b)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.

    https://www.law.cornell.edu/uscode/text/18/2071

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      John Murdock

      OK, it already is an Advisory Opinions mini-segment. Sorry---a reason to listen fully before commenting based on your own independent lightbulb moment (that apparently also was had by Marc Elias, if a bit more vociferously by him).

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        John Murdock

        David and Sarah (probably correctly) brush off the possibility of this statute being a legal bar to a DJT election in 2024. It certainly creates an optics problem, though, should DJT be convicted under a statute that would get almost any other Executive Branch employee fired and put on the "do not hire" list. We are, of course, a long way from a conviction. I'm mostly in the "cool your jets" camp on all things Mar-a-Lago search warrant, so I'll follow my own advice and not take the hypos any further.

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  2. Jonathan Mahlum

    Loved the podcast! I do have a question about "Major French" example illustrating the kid gloves used on public personalities in government when it comes to mishandling classified information. Does the Uniform Code of Military Justice have any provisions (or whatever the correct legalese is) that mete out harsher punishment for crimes involving sensitive documents? If, for example, NSA mid-level manager Goldberg was caught stuffing documents in his pants alongside Major French, would prosecuting attorney Isgur be able to ask Judge Hayes for stricter sentencing of Major French (assuming conviction and equal culpability for both parties)?

    Note: please excuse any legal lingo that I have misused or misunderstood, this question is coming from a non-lawyer. Thanks in advance for any answers!

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    Faraday

    Sarah, I hope you are perusing this section. I listened intently to your description of the chain of command on this kind of event and agree with your summation. However I have one additional wrinkle I’d like to ask about. The Secret Service is there to provide physical security for Trump and would’ve, err, met the FBI at the gate. If I recall correctly, they are still and division of DHS these days? Would they not’ve been told ahead of time to avoid an uncomfortable interaction and also have reported up the chain about the activity? This sort of thing would’ve gone to the top and should’ve made it to the Whitehouse or am I wrong?

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      Sarah Isgur vertical-nib Author

      Secret service agents don’t talk about the actions of their protectee. So unless they needed support, they wouldn’t have been able to tell anyone. It was up to Trump whether he wanted to publicly disclose that FBI agents were on his property.

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        Faraday

        So nothing unless there was an armed confrontation? They must be ready for something very serious to not give call to the home office that, we got a bunch of guys claiming to FBI coming at us. Outer perimeter would’ve been collapsing on the approaching vehicles in a lot of circumstances. Seems gutsy.

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        1. Avatar photocircle-angle-nib
          Sarah Isgur vertical-nib Author

          Lead FBI agent would present badge and a search warrant signed by a judge. Not much need to call it in.

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            Faraday

            Then the thirty extra guys? That’d be better.

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  4. AHenry

    Apparently presidents leave office with things that do not belong to them on a regular basis. This also happened with the Clintons and the Obamas. The Clintons returned some the first time they were asked but the White House and Archives had to go back a second time.

    What is disconcerting is that this seems to be a politically motivated act by the FBI.

    Sec. Clinton kept a home email server with classified material. She was asked to turn over the server then did so - after she deleted emails that might be incriminating. Is this cooperation? Do police give drug dealers time to dispose of their stashes?

    Then when the FBI found evidence of emails the Secretary had deleted, did they charge her or any of her staff with obstruction? No. And Sarah has said that they probably would not have been able to make the charges stick (apologies if I am misquoting Sarah here). But Sec. Clinton knew what she had done was wrong. She has been in government for decades, is a lawyer, and has done similar things before.

    There has been a relentless pursuit of Trump since before he took office. With Michael Flynn they even targeted his son in an effort to force the general to plead guilty. Andrew McCabe lied to the FBI and he is now retired with full benefits and writing for "The Washington Post".

    Before Trump the IRS targeted conservative 50c3s and no one was called to account.

    I didn't vote for Trump and I do not want him to run in 2024 but this is giving him a platform to run on - if the government can do this to Trump they can do it to the rest of us. How many people will be swayed by this?

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    Dina

    Can a former president just say randomly about any classified information that he declassified it while president? Is there no process that has to be followed?

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      Sarah Isgur vertical-nib Author

      There’s some debate over this actually

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        Dina

        Thanks for responding! Would love to know more—maybe address it in a future podcast?

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  6. Jason Runyan

    I have learned never to underestimate what people will do in politics when they are out to get someone. That being said, after watching the recent Senate hearing with FBI Director Wray, and watching him get GRILLED by Ted Cruz, Josh Hawley (who were both embarrassingly stupid trying to get soundbites), Mike Lee, Chuck Grassley, and even Ben Sasse about stuff the FBI was or wasn't doing, and the constant hammering about the Trump Russia stuff, not to mention him talking about his greatest concern being people attacking and killing law enforcement at such high levels, I would be SHOCKED if he and Garland, who knows he will get grilled when Republicans take over, signed off on seizing items from Trump without having a guarantee that it would be fruitful. The DOJ just interviewed Trump's former lawyers and high members of his cabinet, so I can't imagine they'd be stupid enough to do something like this without solid reason. I don't think they can use that "someone misled us" excuse again like what happened with Carter Page's warrant. I try to temper my anticipation, but this would be the biggest FBI / DOJ blunder in history if they're doing this for some "confidential records" bullcrap. They know this will ignite Trump's cult members to "level 11 Jan 6 was a day in the park style" rage if they don't start with the charges soon. We'll see. I also think that Trump would be a freaking idiot to have a bunch of incriminating crap at his house knowing they are out to get him. But of the 2 sides being stupid, I put my money on Trump being the stupid one.

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      PaulH

      While I agree with your assessment that Trump is more likely to be the stupid one, I wouldn't underestimate the strength of partisan blinkers.

      What puzzle me and what I haven't heard any discussion of, what is it that Trump would so desperately want to keep. Some of the stuff that was turned back to the archives sounds like nothing more than memorabilia. If Trump did keep some stuff that was truly sensitive and top secret, why did he do that? What use would it be to him?

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      1. Jason Runyan

        I agree. That is what I have been wondering? What was so urgent that he felt he needed to take them to his home and wouldn't turn them in before now?

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  7. Michael Kliegman

    I didn't do a blackline comparison but based on the first few minutes of yesterday's Dispatch Podcast it seems Sarah and David just did the same thing as in the emergency AO podcast about the Mar-a-Lago raid. Why bother? Just do the one, or give those of us who did listen to AO a reason to listen to the Dispatch Podcast (or warn us not to bother)?

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  8. Chris Taylor

    There is word going around that the judge who signed off on this affidavit was Bruce Reinhart - a person who also provided representation to Epstein and his accomplices. Does anyone know if this is factual? If so, is that relevant?

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    1. Lynne

      The NY Post reported that he represented 2 people (Epstein’s scheduler and one of Epstein’s sex slaves) when they were granted immunity (to testify against him?). The details are not clear and I would definitely not call this article neutral or necessarily fact-based. Just providing for reference to what’s going on around social media. https://nypost.com/2022/08/09/judge-who-approved-fbi-raid-on-mar-a-lago-once-linked-to-jeffrey-epstein/amp/

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  9. Alvin

    If the Twitter is talking Civil War over this FBI search, what would they say if Trump is indicted in Georgia for his Raffensburger call? Or is that different because it's not the Biden administration?

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      Pat Riot

      It's no different.

      And it's not just "Twitter", it's the entire Republican party.

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  10. Jon

    If you ignored all of the searches being conducted now in the name of January 6 your "hmmmm" position would have some merit. However in the broader context of what the FBI and DOJ have been doing- issuing subpoenas and search warrants faster than booze to an alcoholic- this "hmmm" position was frankly insulting to both of your intelligence.

    This was indeed about Jan 6. It took McCarthy an hour to write his piece. Why- because it it is that obvious.

    If it truly was about "documents" that a full cleaning out of the FBI and DOJ is warranted.

    But it wasn't. And Sarah's observation that the agents didn't seize electronic records does not minimize this fact. If you are using the documents basis as the precursor then the warrant would have limited what could be seized in this specific search.

    And of course if they find January 6 evidence in the documents seized- they will just come back with a second warrant- this time obtained under the January 6 crimes probable cause basis.

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