The Mar-a-Lago Mysteries and the Wall Street Journal

My August 16 post was titled “Mar-a-Lago: The Questions and the Shame.” Since that time, some significant information has become available, but those vital questions remain largely unanswered. Chief among them: Why did Trump want classified or other sensitive materials? For what purpose did he intend to use them? There is no evidence—yet—that Trump planned to use the materials for his own advantage in some way, financial or otherwise, but in the absence of any other plausible explanation of his motives, that suspicion cannot be dismissed.

The major development since the August 16 post was the unsealing of the heavily redacted version of the affidavit on which the Mar-a-Lago search warrant was based.

My own view was that there were compelling reasons for the affidavit to remain sealed: even if heavily redacted, its disclosures might not only hinder the government’s investigation and but put at serious physical risk any confidential informant whose identity could be deduced. I also questioned whether an adequately redacted document would serve a public interest. In the event, however, it may be that my concerns were misplaced.

In terms of protecting confidential informants, the government appears to have done a very thorough job (but also one that passed muster with the judge), in concealing their identities. One must assume that the atmosphere at Mar-a-Lago has become rather tense as the occupants frantically speculate on who the “rats” might be. At the same time, the un-redacted portion of the affidavit made a clear case that, far from seeking a political benefit, both the National Archives and the Department of Justice were extraordinarily patient in their attempts to coax the former president into compliance with the law; the issuance of a search warrant was a last resort to recover highly sensitive documents that should never have found their way to Mar-a-Lago.

Thus, upon release of the affidavit, Republicans who had been sputtering with rage suddenly lapsed into a sullen silence. It was left to some elements of the media to attempt damage control. The Wall Street Journal set the tone with an August 27 editorial, that sniffed, “The Mar-a-Lago Affidavit: Is That All There Is?” Seeking to assume a judicious posture, the Journal acknowledged that Trump was hardly blameless (“We aren’t defending Mr. Trump’s behavior in any of this.”). Nevertheless, the central thrust of the editorial was to argue that the whole matter was merely a “dispute over documents” or, in the vernacular, No Big Deal. Just one more case of “Trump behaving badly.” To that end, the Journal said not a single word about the extraordinary sensitivity of the documents in question—some of which disclosed human sources of intelligence. It made no mention of the grave risks to national security and to the lives of confidential informants if the contents of the documents were disclosed—either through Trump’s notorious sloppiness or his relentless quest for personal gain.

The Journal also published, and endorsed in a separate editorial, an essay that went so far as to claim that Trump’s treatment of documents was lawful under the terms of the Presidential Records Act (PRA). The August 22 essay, by David B. Rivkin Jr. and Lee A. Casey, titled “The Trump Warrant Had No Legal Basis,” was a remarkable exercise in sophistry.

Messrs. Rivkin and Casey acknowledge that “The [PRA] declares presidential records to be public property and provides that ‘the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records.’” Nevertheless, they try to obscure this plain command—with which Donald Trump stubbornly refused to comply—through a legalistic two-step.

First, the writers note that:

[The PRA] doesn’t address the process by which a former president’s records are physically to be turned over to the archivist, or set any deadline, leaving this matter to be negotiated between the archivist and the former president.

While that is true enough, the absence of a deadline did not result in any substantial delays with prior administrations, and there was no need for one here. The law is clear and leaves nothing of substance to be “negotiated.”

Rivkin and Casey’s principal argument is that “The PRA explicitly guarantees a former president continuing access to his papers.” That is quite true: the Act does give a former president a degree of access to his papers that is denied to others. But the plain meaning of the PRA is that such “access” is still access to documents that are in the custody of the National Archives.

In short, contrary to the Rivkin and Casey thesis, the PRA provides no shelter from the criminal statutes, including the Espionage Act, cited in the search warrant. And in the face of continued obstruction, and express falsehoods—that all classified records had been turned over—the search warrant became the only sure means of recovering the crucial documents.