Earlier this week I offered “Notes on the Trump raid.” I want to offer a few tentative notes on the Mar-a-Lago search warrant/receipt unsealed in slightly redacted form yesterday. Mr. Techno Fog, Esq., has posted the documents with his own observations here. The Wall Street Journal has separately posted the search warrant/receipt here.
I want to tune out the noise — Merrick Garland’s fatuous four-minute public statement, the ensuing Department of Justice leaks, and the Trump team responses — and focus on what we can observe with our own eyes. I reiterate my earlier observation that the authorities are out to get Trump.
Andrew McCarthy has commented here and here. He also takes up President Trump’s assertion that he declassified all the documents in issue: “[I]f Trump declassified documents while he was still president, then they no longer constitute classified information that he could criminally mishandle.” Query the evidence supporting the proposition that Trump declassified the documents. Where is the proof that he did so while he was president? That is not clear to me.
We have yet to see the affidavit(s) that underlie the warrant. We therefore lack the alleged factual basis supporting the finding of probable cause on which the approval of the warrant is predicated. We all want to see the affidavit(s) underlying the search warrant. The affidavits are where the action is. Without them we are shooting in the dark.
Judicial approval of the search warrant by itself doesn’t mean much insofar as the proceeding is ex parte (not adversary). As we saw in the Russia hoax, the government — the FBI and the Department of Justice — swear to “facts” without opposition and that may not be so. In the Russia hoax, they did this before federal judges serving in the FISA court with virtual impunity.
The scope of the FBI search is set forth in Exhibits A and B. The scope covers every inch of Mar-a-Lago but private areas. It covers every Trump administration document “illegally possessed in violation of” three specified criminal statutes. Looking at the receipt, I infer that the FBI seized whatever documents they wanted without reference to the criminal statutes.
Let’s take a look at the criminal statutes. They are cited in this order:
18 USC § 793: This is a provision of the Espionage Act that prohibits the appropriation of defense information “with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.” The New York Times has won Pulitzer Prizes that celebrate its violation of this provision of the act. I wrote about it at length in the 2006 Weekly Standard article “Disclosure.” Trump’s alleged violation of this statute is a joke. I believe it discredits the operation — it is a red flag that the purpose is other than as stated. The allegation that Trump violated this provision of the law should not withstand the slightest scrutiny (let alone the requirement that it be supported by probable cause).
18 USC § 2071: The statute prohibits the willful and unlawful removal or destruction of government records. Was Trump’s removal of the records unlawful?
18 USC § 1519: This is an obstruction of justice statute. It prohibits the destruction, alteration, of government records “with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States.”
We need the supporting affidavit(s) to have any idea what the alleged violation of sections 2071 and 1519 is about. The alleged violation of the Espionage Act colors my tentative view that what we have here is a crock fabricated in bad faith.
The receipt for seized property runs for three pages. It reflects the seizure of some 20 boxes of items, binders of photos, a handwritten note and the executive grant of clemency for Roger Stone, and “Info re: President of France.” It generally itemizes documents including documents at all classified levels.
When I say what we have here is a crock fabricated in bad faith, I mean that the purpose of the proceeding is other than as advertised. It is in furtherance of the Biden administration’s pursuit of President Trump for the events of Jan. 6 and, as I say — forgive me for repeating myself — I infer that they are out to get him.
UPDATE: NRO’s Andrew McCarthy wrote me this morning to respond to the issues I raised above. I have posted his comments here.