Search-a-Lago

I collected some thoughts to share with you tonight on the topic of the importance of and how to engage in Civil Discourse ahead of the election.

But, then, well, y’all know, right?

Tonight, on the 48th anniversary of Richard Nixon’s resignation from the presidency, the FBI executed a search warrant at Trump’s residence, Mar-a-Lago. Not a raid. No crashing in of doors or destruction of property. This is a judicially authorized proceeding, in which a federal judge independently reviews an FBI agent’s sworn affidavit and must conclude they agree that there is probable cause for the search.

Probable cause is more than just suspicion, it means a reasonable person reviewing the evidence would conclude a crime has been committed and there is good reason to believe evidence or fruits of it will be recovered from the place to be searched. Trump says the FBI searched his private safe. That, in and of itself, tells us a lot about who the likely target of this investigation is.

Of course, we don’t know the specifics, because DOJ doesn’t conduct its investigations in public. But there is plenty of reporting that suggests this is about classified documents Trump took with him when he left the White House. You’ll recall that back in February, we learned classified information was found in 15 boxes of records in Trump’s possession. The National Archives wanted its records back. They got them by negotiating with Trump.

Please avoid getting carried away. While people are sometimes prosecuted under this statute in egregious cases, for instance when General Petraeus shared classified information with a paramour who was writing a book (and even then, the charge was a misdemeanor), in many cases, the government just wants its documents back. We don’t know what the circumstances are here, and shouldn’t leap to conclusions. Investigations into missing classified documents focus on potential crimes, but equally important, they assess whether there has been damage to national security. That last bit makes me quite curious about the nature of the documents DOJ seized.

I’ve seen search warrants used in at least three situations:

• Early in a case to acquire evidence, not always from the target/subject of the investigation, but also from others who wouldn’t give it to me voluntarily

• At the end of an investigation, to get the last bit of evidence from a target, before indicting (or as the last step before concluding there wasn’t sufficient evidence to indict)

• To further an assessment of damage to national security following a spill of classified information and determine whether a crime was committed

You can see a blank search warrant at this link. The judge or magistrate judge fills it out if they agree the agent has provided probable cause. The warrant authorizes the search, stating with specificity the location to be searched and items to be searched for. The judge may permit a nighttime search upon a showing of good cause (that doesn’t seem to have been the case here). Typically, the owner of premises being searched is advised of the search and items seized. Some searches are conducted in secret, with delayed notice of 30 days or more where justified to the person being searched. Again, not the case here.

The second page of the linked document is what’s commonly called a “return of service” — the agent fills out an inventory of items taken in the search and fills in details like the time of the search and returns it to the court to be included in the official record. Trump has the warrant and the inventory in his possession and could release them, although that seems unlikely; they’re probably highly incriminating. These filings are almost certainly sealed, at least for now, in court files, and we won’t see them from that direction.

So why the search warrant? Apparently the information in the FBI’s possession convinced the Attorney General, who would have final sign off at DOJ, that there wasn’t going to be any more voluntary turnover like the boxes of documents Trump returned in February. And that a subpoena, commanding delivery of records to a grand jury, wouldn’t be honored. Search warrants are a last resort for obtaining evidence, and can also be used in cases where there are concerns about destruction of evidence. Lots of room for speculation here at the moment.

But the evidence in search warrants has to be “fresh.” That means it has to be recent, not months old. You can be certain that in this case, that was top of mind for people at the FBI and DOJ who reviewed the search warrant affidavit and for the judge who evaluated it. This search warrant wasn’t based on stale, months old evidence documents were in Trump’s safe. The evidence was recent and compelling.

Some of this suggests this could end up being the type of situation where prosecution is on the table. But I’m still not ready to embrace that conclusion. The National Archives have a reputation for being fiercely protective of public records and insistent on getting back ones that have strayed. The bottom line is, we’re not going to know if this case is headed towards indictment for a while. For what it’s worth, I don’t think it’s a coincidence that this search warrant was executed 91 days before the midterm elections. DOJ goes silent on investigations with a political nexus in the run up to the election, and while some offices run on a 60 day clock, 90 feels right here. Conducting the search today gives DOJ plenty of time to process whatever evidence it now has in its possession.

We all know Merrick Garland is a by-the-book kind of guy. There have been lots of complaints about his restraint, and until recently, his inaction. Garland has repeatedly committed to following the facts and the law. Today, they led him to Mar-a-Lago. It was a good day for the rule of law.

We’ll learn more over the next few days, I’m sure. And I’ll be sending you my delayed thoughts from tonight about civil discourse later this week. It has been a day! Please excuse any hasty typos in this note, as I was in a hurry to send you something tonight.

We’re in this together,

Joyce