Observations on the Mar-a-Lago Raid

There is much to be said about the FBI’s raid on Donald Trump’s home. I won’t try to say it all here. These are a few observations, based on what we know currently:

* To get a search warrant, you have to identify a crime that has been committed, and explain how evidence you are looking for is relevant to that crime. At this point, we don’t know what purported crime was the basis for the Mar-a-Lago search warrant.

* Earlier today, Attorney General Merrick Garland delivered a brief statement to the press, and declined to take questions. He looked remarkably nervous and said hardly anything. Only two points emerged: 1) he ordered the raid himself, and 2) the Department of Justice will unseal the documents that were filed in connection with the search warrant.

* No one doubted that the raid was ordered, at a minimum, by the Attorney General. I think it is virtually certain that Garland had authorization from his boss, Joe Biden.

* Multiple parties, including Judicial Watch, moved the Florida court to unseal the filings related to the search warrant. The magistrate gave the government until close of business on Monday to respond. In effect, Garland said today that DOJ will accede to these motions and unseal the records. It remains to be seen how informative they will be.

* President Trump, like other presidents before him, took files with him when he left the White House. There is nothing necessarily wrong with this. The Presidential Records Act, passed in 1978, says that the official records of a president are public property and belong to the National Archives. But a president can take with him, when he leaves office, personal papers as well as–a point that I haven’t seen made–copies of documents, as long as they are marked as such and he leaves a copy for the Archives.

* Trump, like prior presidents, has negotiated with the National Archives about the materials he took with him. Earlier this year, he sent 15 boxes to the Archives. Subsequently, it is reported that representatives of the Archives came to Mar-a-Lago to review approximately 15 more boxes that Trump still had in his basement. While they were doing the review, Trump came downstairs to greet them. I don’t think the contents of those boxes, the apparent target of the search warrant, are a mystery to the Archives or to DOJ. Maybe they were hoping to discover something new in Melania’s closets.

* The DOJ, in its many press leaks, mostly to its in-house media organ the New York Times, keeps talking about classified information. This is because no penalty attaches to violation of the Presidential Records Act. The Biden administration has to allege the commission of a crime, and that most likely explains its references to classified information.

* I have no idea whether classified information is included in the 15 boxes that Trump has in his basement or not. It wouldn’t be surprising. The serious criminal statutes on classified information relate to passing it on to, say, the Russians or Chinese. As far as we know, there is no suggestion that Trump gave classified information to anyone. He was perfectly entitled to know it and to view it himself; the issue is that he may have taken it to an unauthorized location, i.e., Mar-a-Lago. Until now, this has generally not been considered a serious offense. Sandy Berger is an exception, although he got a slap on the wrist. But in his case, the point was that he stole a document from the Archives, apparently something damaging to the Clinton administration, so as to delete it from the historical record. There is no such suggestion, as far as we know, with regard to Trump.

* Many people have drawn analogies between what Hillary Clinton did and whatever misdeed Trump may now be charged with. I don’t see any comparison. Hillary, while Secretary of State, conducted official business on an illegal, off-the-books server located in her home, apparently for the purpose of evading the Freedom of Information Act. Most notably, the server was insecure, and the Russians, Chinese or others could have, and likely did, intercept her official communications as Secretary of State. Trump, on the other hand, has 15 boxes of documents in his basement. There is no comparison.

* It might be worth noting that 15 boxes, if that really is what is at stake, is a ridiculously small number of documents. As a lawyer, I supervised exchanges of hundreds or even thousands of boxes of documents. Fifteen boxes are a pittance, although it depends, of course, on what is in them.

* We will know more about the Mar-a-Lago raid within a few days, when the search warrant filings are unsealed. My guess, though, is that those documents will leave a lot of questions unanswered.

* The Democrats crossed the Rubicon when they raided Donald Trump’s home. Never before in American history has anything like this happened. I think the consensus of the commentariat is correct: the Democrats had better have something really good up their sleeve, or the blowback will be intense. Hence Merrick Garland’s sad performance today.

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