Mar-a-Lago: The Questions and the Shame

I admit to being among those who initially doubted the wisdom of the dramatic execution of a search warrant at Mar-a-Lago. I tended to assume that the problem arose from Donald Trump’s notorious sloppiness and disdain for behavioral norms. Might Trump actually be prosecuted for violating something called the Presidential Records Act? If not, was the search warrant necessary? If the warrant appeared to be prosecutorial overreach, would Democrats pay a political price?

As the matter developed, however, it became obvious that the search warrant was not only justified, but was essential to national security by gaining the return of highly sensitive documents to government control. Indeed, that may have been the principal reason for the search, and it is not yet known whether a prosecution will ensue. In order to determine whether anyone should be prosecuted criminally, and if so, who, numerous questions should be answered. They include the following:

1. How did the specific classified and other sensitive material come to be sent to Mar-a-Lago? Who did the packing and under whose instruction and whose supervision?

2. To the extent Trump was involved personally in designating materials to be taken, why did he want classified or other sensitive materials? For what purpose did he intend to use them? Did he take any action in writing to declassify any materials?

3. What instructions were given by the White House Counsel or others as to legal constraints on what could be removed? To whom were such instructions given? What effort was made to see that they were followed?

4. When the National Archives demanded the return of materials, and received 15 boxes, who participated in collecting the material that was forwarded to the Archives? What was Trump’s personal involvement? Who determined what materials taken from the White House would be excluded from the shipment to the Archives, and on what basis?

5. A lawyer for Trump signed a written statement in early June asserting incorrectly that all material marked as classified and held in boxes in a storage area at Mar-a-Lago had been returned to the government. What was the factual basis of that statement? Was it made at Trump’s direction?

The most reliable means of obtaining answers to such questions is to call witnesses before a grand jury. Those witnesses would begin with members of Trump’s staff and, depending on their testimony, would ultimately include Trump himself. President Bill Clinton was not excused from giving testimony to a grand jury during his presidency and there is even less reason why a former president should be excused. That is glaringly obvious and is even more so when it is considered that in Trump’s case, unlike Clinton’s, the potential charges bear directly on issues of national security.

The criminal statutes cited in the warrant include the Espionage Act. Contrary to possible first impressions, a violation of the Act does not require proof that a defendant was engaged in or planning to engage in “espionage.” It covers documents or other materials (not necessarily “classified”) relating to the national defense, that “the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.” The Act is violated if a defendant “willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it.”

Although the material obtained by the search warrant has been described only in general terms, it is obvious that much of it falls within the categories enumerated by the Act. Hence, it seems highly likely that violations of the Espionage Act can be established. Accordingly, the Department of Justice should be presenting testimony to a grand jury and proceeding to seek indictments without delay.

Tragically, however, doing so–simply to uphold the rule of law–will be politically explosive, quite possibly to the point of physical violence. And therein lies the deepest shame of the matter. Trump has led spineless Republicans on Capitol Hill in not only proffering pathetic defenses of his conduct, but in attacking the integrity of the Justice Department and the FBI. It is a painful irony that the Republican Party—which once claimed to be a bastion of law and order, and a guardian of national security—is now reduced to disparaging the nation’s premier law enforcement agencies and casting a blind eye to national security.

House Minority Leader Kevin McCarthy tweeted that “The Department of Justice has reached an intolerable state of weaponized politicization. When Republicans take back the House, we will conduct immediate oversight of this department.” Continuing his threat, he cautioned Attorney General Merrick Garland to “preserve your documents and clear your calendar.” Other Republicans went further. As reported in the Washington Post:

Lawmakers throughout the [Republican] party continued to cast the search at Trump’s Mar-a-Lago property, without evidence, as the act of a tyrannical regime, using terms such as “dictatorship” and “banana republic.” Sen. Rick Scott (R-FL), the chairman of the National Republican Senatorial Committee, said the federal government has gone the way of “the Gestapo.”

Given the distemper of our times, such rhetoric inevitably led to threats of violence against the FBI. In light of our recent history, and the fact that our country is awash in guns, those threats cannot be dismissed or ignored. As reported by CNN:

The FBI is investigating an “unprecedented” number of threats against bureau personnel and property in the wake of the search of former President Donald Trump’s Mar-a-Lago resort, including some against agents listed in court records as being involved in the recent search, a law enforcement source tells CNN.

The bureau, along with the Department of Homeland Security, also has issued a joint intelligence bulletin warning of “violent threats” against federal law enforcement, courts and government personnel and facilities.

On Friday, the names of the two agents who signed the search warrant paperwork circulated online. The names had been included in a version of the search warrant that was leaked prior to the official unsealing of the documents. The version released by the court redacted the agents’ names.

Republicans’ inflammatory rhetoric is shameful and inexcusable. And those who have been inspired by it to commit or threaten violence transcend deplorable. They are dangerously despicable.

In a late breaking development, the Department of Justice has opposed an attempt by the New York Times and other media to unseal the affidavit supporting the search warrant. In opposing the unsealing, the government pointed out the harm to the ongoing investigation that would result, as well as the risk to the individuals who had provided information to the government:

Disclosure at this juncture of the affidavit supporting probable cause would, by contrast, cause significant and irreparable damage to this ongoing criminal investigation. As the Court is aware from its review of the affidavit, it contains, among other critically important and detailed investigative facts: highly sensitive information about witnesses, including witnesses interviewed by the government; specific investigative techniques; and information required by law to be kept under seal pursuant to Federal Rule of Criminal Procedure 6(e). If disclosed, the affidavit would serve as a roadmap to the government’s ongoing investigation, providing specific details about its direction and likely course, in a manner that is highly likely to compromise future investigative steps. In addition, information about witnesses is particularly sensitive given the high-profile nature of this matter and the risk that the revelation of witness identities would impact their willingness to cooperate with the investigation. Disclosure of the government’s affidavit at this stage would also likely chill future cooperation by witnesses whose assistance may be sought as this investigation progresses, as well as in other high-profile investigations. The fact that this investigation implicates highly classified materials further underscores the need to protect the integrity of the investigation and exacerbates the potential for harm if information is disclosed to the public prematurely or improperly.

The government stressed that the risk to individuals who might be identified in the affidavit was quite real:

This is not merely a hypothetical concern, given the widely reported threats made against law enforcement personnel in the wake of the August 8 search. See, e.g., Alan Feuer et al., “Armed Man Is Killed After Trying to Breach FBI’s Cincinnati Office,” N.Y. Times (Aug. 11, 2022), available at https://www.nytimes.com/live/2022/08/11/us/fbi-cincinnati-shootingnews; Josh Margolin, “Authorities Monitoring Online Threats Following FBI’s Mar-a-Lago Raid,” ABC News (Aug. 11, 2022), available at https://abcnews.go.com/US/authoritiesmonitoring-online-threats-fbis-mar-lago-raid/story?id=88199587.

The position of the government is compelling. Indeed, the attempts of the media to unseal the affidavit may be understandable, but they border on irresponsible. Apart from the factors cited by the government, there is no serious public interest in unsealing the affidavit. The premise of the affidavit was that Trump had failed to turn over sensitive materials that he had no right to retain, and that premise was abundantly validated by the search that the government conducted and the documents it removed from Mar-a-Lago. The government must now be permitted to continue its investigation without the serious interference that would most certainly stem from unsealing the affidavit.

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I recently did a podcast with Bret Bradigan, publisher of a fine local publication, the Ojai Quarterly. The podcast on Ojai: Talk of the Town, touched on various subjects including the January 6 hearings, Watergate, baseball and my Ogden Nash biography. Readers who may be interested can find it here and on multiple podcast apps.