Political Editors / August 10, 2022

In Brief: Mar-a-Lago ‘Raid’ Was About the Capitol Riot

This search was almost certainly about much more than classified documents.

There’s definitely a sense of two-tiered justice in this country, as our Douglas Andrews argued yesterday after the FBI raided (i.e., conduced a court-authorized search of) Donald Trump’s estate at Mar-a-Lago. Former federal prosecutor Andrew McCarthy has a few thoughts of his own.

There’s a game prosecutors play. Let’s say I suspect X committed an armed robbery, but I know X is dealing drugs. So, I write a search-warrant application laying out my overwhelming probable cause that X has been selling small amounts of cocaine from his apartment. I don’t say a word in the warrant about the robbery, but I don’t have to. If the court grants me the warrant for the comparatively minor crime of cocaine distribution, the agents are then authorized to search the whole apartment. If they find robbery tools, a mask, and a gun, the law allows them to seize those items. As long as agents are conducting a legitimate search, they are authorized to seize any obviously incriminating evidence they come across. Even though the warrant was ostensibly about drug offenses, the prosecutors can use the evidence seized to charge robbery.

I believe that principle is key to understanding the FBI’s search of former president Donald Trump’s Mar-a-Lago estate in Florida on Monday. The ostensible justification for the search of Trump’s compound is his potentially unlawful retention of government records and mishandling of classified information. The real reason is the Capitol riot.

Obviously, the January 6 Inquisition hasn’t made the case for Trump having broken the law, and the Justice Department can’t charge Trump with the riot. McCarthy says the DOJ is hoping to change that with this raid, and “the former president’s apparent violations of government records and classified information laws gave the DOJ the pretext it needed.”

No former U.S. president has ever been indicted by the Justice Department. I do not believe the DOJ contemplates prosecuting a former president for mishandling classified information, much less purloining other government records. I especially doubt it when we are talking about a former president who could be the Republican candidate opposing the incumbent Democratic president in the next election. After all, the Obama/Biden administration did not charge Hillary Clinton with mishandling classified information, rationalizing that doing so would amount to a constitutionally offensive selective prosecution since such misconduct is often overlooked.

Still, regardless of whether the DOJ actually intends to prosecute a classified-information offense, mishandling classified information is still a federal crime. And a federal crime — any federal crime — can be the predicate for a U.S. court-authorized search warrant.

Trump’s chaotic departure from the White House likely did include boxing up and taking classified documents. Trump even returned at least some of this material. Where January 6 comes in is whether Trump and his team took steps to enact their plan to have Vice President Mike Pence unilaterally overturn the election:

Ordinarily, we give bad legal theories a wide berth. If Trump, to the contrary, were to be charged, the DOJ would in effect be saying that the evidence is overwhelming that Trump and his underlings knew the “stolen election” claims they were so aggressively pushing had absolutely no basis in fact or law — i.e., at some vague point, this “stop the steal” enterprise evolved from being just a bad legal theory into an actionable criminal fraud.

The Democratic base badly wants Trump to be charged with felonies. So does the House January 6 committee, heavily amplified by the media-Democrat complex. I am also quite sure that within the Justice Department, high-ranking officials are urging Attorney General Merrick Garland that the equities favor indicting Trump because he persists in the stolen-election claims — arguing that a successful prosecution would put these divisive claims to rest.

“Nevertheless,” McCarthy says, “Garland and his top advisers know it’s not that simple.” Hence the “raid.”

The Justice Department is trying to make a Capitol riot case, but Garland is not sure at this point that he has one he’s comfortable bringing. And since it would be explosive to signal that Trump is the subject of a Capitol riot investigation, the DOJ is trying to investigate him as such without saying so.

This investigation has been ongoing in various guises, McCarthy says, including search warrants and grand jury subpoenas to Trump’s lawyers. “The DOJ,” he says, “is trying to make a case against Trump on Capitol-riot-related crimes.” In the search of Mar-a-Lago, he concludes: “The Bureau and Justice Department prosecutors were looking for evidence powerfully showing that the former president and his confederates knew their stolen-election claims were false. That’s what the DOJ needs, at a minimum, to indict Trump for crimes arising out of the January 6 uprising.”

Read the whole thing here.

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