Still Waiting

It’s 8:53 p.m. Central Time as I pick up my pen to write tonight. Neither Judge Engoron’s final decision in the New York civil fraud case nor the long-awaited presidential immunity opinion from the Court of Appeals for the District of Columbia has materialized. We are still waiting.

But there was news tonight on another front.

In the Mar-a-Lago case, ABC is reporting that the FBI failed to search two specific areas inside of Trump’s residence when they executed the August 2023 search warrant. One was a locked closet, the other a hidden room—exactly the kind of places that should have piqued agents’ interest the most! You want to search areas a defendant doesn’t want you to take a look at.

On the face of the reporting, it’s difficult to figure out why FBI agents held off. The reporting seems to suggest agents encountered the closet, couldn’t find the key, and decided to let it go. It’s not clear they were even aware of the hidden area, although the Secret Service would have had a complete floor map for the area Trump resided in, and agents are trained to be alert for concealed spaces. But sometimes, people make mistakes. That seems to have happened here, and it’s troubling in a case of this magnitude.

The search warrant itself was broad and would have clearly authorized a look into both areas. “The locations to be searched included the ‘45 Office,’ all storage rooms, and all other rooms or areas within the premises used or available to be used by FPOTUS and his staff and in which boxes or documents could be stored, including all structures or buildings on the estate.” Emphasis on “could” be stored.

But when agents encounter an area they’re not certain they’re clearly authorized to search under the terms of the warrant, they can use new information they’ve acquired to ask a judge to expand the areas of the search. That could have been done here if there was any concern about taking a look in the locked closet.

The reporting says it’s not clear that Trump ever kept classified information in either space, but months after the search, the Special Counsel’s team learned that Trump had an employee change the lock on the closet while his attorney Evan Corcoran was sequestered in a storage area in Mar-a-Lago's basement searching for documents. Corcoran was there because he’d been told the storage area was the only place he needed to search for documents. The Secret Service had maintained a key to the closet before Trump had the lock changed, but he specifically directed the employee to give the new key to him, and the reporting is that no key for the closet could be found when Mar-a-Lago was searched.

It’s inexplicable that agents didn’t insist on being provided with a key or break the lock in order to look into the space. Important national secrets were at risk, and they were authorized to look into any space within Trump’s control where they could be stored.

Months later, agents began to question witnesses about the spaces they hadn’t searched and learned employees were told a few days after that search that agents might have missed some areas. The government’s priority in a case involving classified documents is to get its secrets back. That probably explains why prosecutors continued to push Trump’s lawyers for additional material after the search and were provided with some, after a judge ordered Trump’s team to keep looking.

If prosecutors were unsure everything had been recovered from Trump, they would have tried to obtain a new search warrant. But months later, the probable cause that substantiated the original warrant would have been “stale.” To obtain a search warrant, prosecutors need fresh evidence to show they expect recover evidence of a crime in the place to be searched, not just that it was there at some point in the past. They seem to have come up empty-handed in that regard, or perhaps they believed they recovered it from Trump’s lawyers. In any event, even after Jack Smith took over as Special Counsel in November, there doesn’t appear to have been a second search warrant.

But that doesn’t mean this evidence couldn’t prove to be useful. The meat of the case against Trump is his effort to obstruct the investigation and to keep classified material from being recovered by the government, even after his own lawyers advised him he was required to return it. If Jack Smith’s team has come up with evidence that Trump, for instance, changed the lock on his closet and stored documents there to conceal them from the government, that would be powerful when the case goes to trial.

Of course, that “when” is still the big unknown here. We’re not used to thinking of judges as standing in the way of justice, but it’s increasingly difficult to view Judge Aileen Cannon in any other light. Last week, Merrick Garland was asked about the trial in the election interference case and he said, "The prosecutions that you're talking about were brought last year. And the special prosecutor has said from the beginning that he thinks public interest requires a speedy trial, which I agree with." That’s no less true in the Mar-a-Lago case. The public is entitled to know whether a candidate for the presidency is guilty of illegally possessing and carelessly maintaining some of the nation’s most important secrets and whether he obstructed justice before they vote. Judges shouldn’t stand in the way of justice.

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We’re in this together,

Joyce