DOJ Hits Mar-a-Lago With A Search Warrant: Is National Security The Issue?

August 8th was quite the news day for Trump and his handling of government records. First Maggie Haberman confirmed the story of Trump literally flushing documents down toilets, right down to pictures of torn documents with Trump’s handwriting sitting in commodes.

However, that fascinating story was quickly washed away in the news cycle as former President Trump’s home in Mar-a-Lago was raided by a large team of FBI agents armed with a search warrant. The agents focused on Trump’s residential and office area and even (according to Trump) broke into Trump’s personal safe.

Since February, at the request of the National Archives, the DOJ has been investigating Trump’s improperly taking 15 boxes of materials that included classified documents. Some of the documents Trump tried to steal related to January 6th and since their recovery have been used by the Select Committee investigating the events of that day.

Kaitlyn Collins of CNN broke that the raid followed a visit to Mar-a-Lago in June by four officials including Jay Bratt, Chief of Counterintelligence and Export Control at DOJ.

Notably that office is responsible for “the investigation and prosecution of cases affecting national security” and “has executive responsibility for authorizing the prosecution of cases under criminal statutes relating to espionage.”

Biden’s White House denied any advance knowledge of the search warrant, which is how it should be. However, you can be assured this warrant did not happen without extensive review at DOJ. Never in history has an American President had his home targeted for a search warrant and this one would not have happened without vigorous debate before being approved by Attorney General Garland personally.

We don’t know much about this, and most of what we do know unreliably comes from Trump. The FBI/DOJ did not announce this raid. News of it broke because Trump released a statement complaining about it. It was the usual Trumpian rant, starting with a Star Wars crawl style “these are dark times for our Nation” and going on to allege prosecutorial misconduct, weaponization of the justice system, witch hunts, and of course, the obligatory reference to Hillary Clinton’s emails. Trump even complained that it was no different than Watergate.

“They even broke into my safe! What is the difference between this and Watergate, where operatives broke into the Democrat National Committee? Here, in reverse, Democrats broke into the home of the 45th President of the United States.”

Well Trump, the difference between this and Watergate is a search warrant. This did not have thugs secretly breaking into the place in the dead of night, it was FBI agents (not “Democrats”) going to the door and presenting that warrant. A warrant that had to enumerate at least one crime (more on that in a minute) for which a judge determined there was probable cause evidence for that crime would be found.

As surely as the DOJ did not lightly seek that warrant, you can be assured a federal judge, asked to authorize the only search warrant in history against a former President, would not lightly do so. I suspect FBI agents and DOJ officials had to personally appear before the judge to answer probing questions regarding the legal and factual basis for the warrant.

The legal standard is probable cause, but this warrant would have required far more than that. What’s more, the stakes almost certainly had to be higher than the mere mishandling of classified documents. I believe national security had to be at stake. Trump was likely peddling national secrets to foreign powers. If I had to guess which foreign power, Saudi Arabia. Trump has a history of sharing nuclear secrets with the Saudis, and Kushner got $2 billion from the Saudis under very suspect circumstances just after leaving the White House. The involvement of the Counterintelligence & Export Control Section of DOJ also supports this theory.

In his statement Trump claims to have cooperated with the Government regarding these documents. Quite obviously, the FBI, the DOJ and a federal judge disagree. All three were convinced that evidence of crimes would be found at the location searched. The warrant had to list at least one such crime, and there is a long list that might be included.

The one most people are focused on is 18 U.S.C. § 2071 for removing, concealing or destroying a government document. The reason for the intense interest in this statute is not the three year prison term, it’s that anyone convicted under it is also “disqualified from holding any office under the United States.” In other words, Trump would be ineligible to be President of the United States, or any other government job for that matter.

Another possibility if this is going the direction I suggested is 18 U.S.C. § 798, for transmitting classified information to any unauthorized person, including a foreign government. For the record, this provision is in the espionage statute and includes a ten year jail term.

Yet another possibility is 18 U.S.C. § 1924 which applies when an officer of the United States removes classified documents without authority. It carries a five year prison sentence.

Any, or all, of these statutes could be involved, and there are others as well. In my experience a search warrant against a political celebrity is always followed by an indictment. This is because the standards to get such a warrant are so high that they already have enough evidence to indict. There is no bigger political celebrity than a former President. The first indictment of Trump may have nothing to do with January 6th, and everything to do with stolen classified documents.

However, if the search found evidence related to January 6th it can still be used against Trump. Any evidence found pursuant to a legal search can be used, even evidence unrelated to what was being looked for.

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Keith

Keith

Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80