The Mar-a-Lago Raid: Criminal Prosecution or Political Indemnification?

Below is my column in the Hill on the raid on Mar-a-Lago. Questions continue to grow over the necessity for the raid as opposed to the use of a subpoena or other means. According to the Trump counsel, the former president was given an earlier subpoena and complied with it and then voluntarily gave the FBI access to a storage area and agreed to add a specified lock on the room. It is not clear why a second subpoena would not have sufficed if there were other covered material under the Presidential Records Act.

There is also a report of a confidential informant or source used in the operation. The only thing clear is that, while the J6 Committee does not appear to have changed many minds, the raid has. Any possibility that Donald Trump might not run seems to be evaporated with any likely challengers in the wake of the raid. That could change as we learn more details but the raid has galvanized Trump’s supporters. Ironically, Newsweek reported that the FBI was hoping the raid with Trump out of town would be a “lower profile” option — a notion that borders on the delusional. The lower profile option is called a subpoena.

Here is the column:

The unprecedented raid on former President Trump’s home in Florida has set off firestorms of celebration and recrimination across the country. For Trump foes, it is the long-awaited moment of FBI agents swarming over Trump’s property in a concrete step toward criminal prosecution. For his supporters, it confirms long-standing suspicions of an FBI willing to target Trump on any grounds possible, to bar him from regaining office.

The raid will fulfill the narrative of both sides and, in many ways, advance both causes. For many Democrats, it will paint Trump as a felon-in-chief; for many Republicans, it will reinforce belief in a “deep-state” conspiracy against him.

Yet this is another moment in need of sobering reality checks on what it does and does not mean.

The most serious possible aspect of the raid did not occur on Monday night. This apparently was not a warrant executed in relation to the Jan. 6 riot or an outgrowth of an ongoing grand jury investigation in Washington that could involve charges of seditious conspiracy, obstruction of official proceedings or other serious counts.

Instead, the raid initially appears to be an outgrowth of the long tension between Trump and the National Archives over material removed at the end of his presidency that is subject to the Presidential Records Act (PRA).

previously testified in Congress on the seizure of some boxes of material at Mar-a-Lago and the authority of the National Archives to seek intervention by the attorney general to force compliance with the PRA. The PRA is rarely subject to criminal prosecution, and past prosecutions have resulted in remarkably light punishments.

While the PRA requires the preservation of documents — and Trump’s alleged removal of records likely violated the law — it is relatively weak on enforcement elements. As shown in prior administrations, presidents have long chafed over the PRA’s limitations and required disclosures.

The 1978 law requires that memos, letters, emails and other documents related to a president’s duties be preserved for retention by the National Archives and Records Administration at an administration’s end. Prosecutions can include charges under Section 2071 which states that anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates or destroys … any record, proceeding, map, book, paper, document, or other thing, filed or deposited … in any public office” can be fined or imprisoned up to three years. An allegation of removing classified material can trigger other laws beyond the PRA that bar the removal without authorization and proper protections.

Records violations involving both presidential and non-presidential material are common, however. Those laws were raised with regard to former FBI Director James Comey removing FBI material and then leaking information to the press, yet he was not prosecuted.

In the case of President Clinton’s former national security adviser, Sandy Berger, the violations involved stuffing classified material into his pants and socks to remove them from the Archives and, after dropping them at an outside location, to retrieve them later. Berger was allowed to plead to a misdemeanor, given two years’ probation and a three-year suspension — not a permanent revocation — of his security clearance.

Former CIA director and retired four-star Army general David Petraeus was accused of giving access to classified information to his alleged lover. Although prosecutors reportedly wanted to file serious felony charges, Petraeus also was given a generous plea deal without jail time.

Thus, the targeting of Trump on a PRA case would raise questions about the necessity for such a raid, as opposed to using a subpoena or other measures. It does not mean criminal charges are inevitable, despite the euphoria expressed in many quarters.

All this brings us back to Sandy Berger’s socks — with a top official knowingly stuffing classified material in his clothing in order to remove it from a secure location, then dropping it at a spot for later retrieval.

Thus far, Trump’s reported behavior is well short of Berger’s. According to Trump’s son, Eric, Trump’s safe was forced open, only to find it empty. The question is, what documents were found and was there prior knowledge that they were illegally withheld? Archives officials searched Mar-a-Lago in February and recovered 15 boxes of material; it is unclear whether they identified and notified Trump of other missing documents believed to remain on his property.

While there is no need to show “evil intent,” the Justice Department must show that “an act is … done voluntarily and intentionally and with the specific intent to do something the law forbids.” Whether such evidence exists here is not clear.

The Justice Department could argue that the earlier recovery of 15 boxes put Trump on notice that he had to make a complete surrender of any such documents. However, it still would need to show he had the specific intent to hide or retain such material. If he was given specific notice of material in his possession, it could show specific intent. It also would show a virtual self-destructive mania in light of the host of investigations already circling the former president. Absent an extraordinary disregarding of any notice, this search could find covered or classified material — but not necessarily find a viable criminal case.

If that is the case, there likely will be continuing questions over the use of a sensational raid to look for classified material, particularly this close to the midterm elections. The Biden administration has engaged repeatedly in heavy-handed FBI raids without any clear necessity, including searches or arrests targeting Rudy Giuliani, Roger Stone, Peter Navarro and other Trump associates; each played out on television, despite the obvious alternatives of voluntary surrenders. It remains unclear whether some of these raids even uncovered criminal evidence or will result in criminal charges.

There is a documented history of bias against Trump by top FBI officials, including prior falsification or misrepresentations used to facilitate the Russia conspiracy investigation. Thus, Attorney General Merrick Garland surely knew this raid would rekindle suspicions that this could be another example of what fired FBI official Peter Strzok once called an “insurance policy” against Trump becoming president in 2016 — only this time in 2024. For that reason, the Justice Department has an added burden to show this raid was a step toward actual criminal prosecution and not just a political indemnification.

We will soon learn if a criminal case can be brought on the fruits of this search. Absent such charges, the empty safe at Mar-a-Lago could become the most indelible and embarrassing image since Al Capone’s safe.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

 

616 thoughts on “The Mar-a-Lago Raid: Criminal Prosecution or Political Indemnification?”

  1. Once again, thank you Professor Turley for illuminating the facts, or lack thereof, in this ongoing tale. You are truly a defender of our Constitution. And, a “re-founder” of our republic.

  2. The only explanation for not letting Biden and Garland be in the loop (if you can trust those liars) on the raid is that Wray knew Trump had evidence on the corrupt FBI and was waiting to use it. That would justify the manpower (40+), the overbreadth (Melania’s wardrobe) and the radio silence and rushing out of town (Biden and Garland). It’s all about to explode and I hope the Repubs don’t waste this chance to throttle the Maoists who rule us.

  3. They were being petty because it was Trump, just as they have for the past seven years. That is all. I have no doubt every single other POTUS hasn’t given every single scrap to the Archives.

    There is no point arguing with those ‘celebrating’ at this point, their heads have been hollowed out. Hating Trump more than a legitimately fascist party that literally, actually, just ‘blessed’ us with 87,000 armed enforcers, rather than just spread hyperbole about such in the news due to the irrational hatred of a single person that never seems to materialize, makes the kind of sense that isn’t.

    This is absolutely what happened in Germany – too many who were opposed were too frightened to speak up until it was much too late.

  4.  “John Lewis is the conscience of America. Donald Trump doesn’t have the moral stature to kiss John Lewis’s feet.’” — Bruce Reinhart

    Bruce Reinhart is a magistrate judge, and an Obama supporter who openly detests Trump.

    He is the judge that the Biden administration went to for permission to raid the home of its chief political rival.

    Tyrants always use regime “judges” for political cover, and to dupe the public with a veneer of legitimacy.

    1. And Reinhart has given the DOJ/FBI a short window to respond publicly or the warrant will be made public.

      1. “And Reinhart has given the DOJ/FBI a short window to respond publicly or the warrant will be made public.”
        *************************************

        Well, when you step on your … er … private parts, you tend to want to move your foot quickly.

  5. The KGB style raid on the residence of a former President of the United States was unprecedented in U.S. history. The WH Press Secretary says “No comment” regarding questions about this horrendous action. Our current President is MIA.

    This was an unnecessary show of force with long range implications. What did they expect dawning tactical gear? A firefight? I can picture a 1950s B movie. The FBI with a megaphone, “Come out! We have you surrounded!”

    “You’ll have to come get me you dirty coppers! We ain’t coming out!”

    The FBI and the DOJ’s reputation is now permanently marred. That’s what happens when you bring a cannon when a pea shooter would have sufficed.

    1. The FBI and DOJ reputation was already permanently marred. Let’s not forget 33,000 deleted emails of recipes, wedding plans and yoga exercises destroyed, and the destruction of subpoenaed documents residing on phones and a hard drive destroyed with hammers and bleach bit. Not even the most rabid anti-Trumper could pretend the raid on Trump was over classified documents and not an attempt to disqualify him in 2024.

  6. After they removed that first group of boxes of White House documents they examined them. They knew there were more.
    Trump had lied.
    A warrant to search is the only way to look for them all.
    Nuff said knucklehead.

  7. As more facts come to light, things are not going well for the FBI/DOJ.
    That could change if they were more transparent about the whole thing.
    The optics are terrible.

    Andrew Yang made an interesting observation,
    “I’m no Trump fan. I want him as far away from the White House as possible. But a fundamental part of his appeal has been that it’s him against a corrupt government establishment. This raid strengthens that case for millions of Americans who will see this as unjust persecution.”
    -Andrew Yang, Aug 9 2022

  8. It really is a remarkable thing to see a former President’s home raided. It’s like common sense is completely missing from our highest officials. Just take the dumb speeches by Harris and the bumbling of Biden and Pelosi’s bizarre statements to the press. Plus a Congress that brazenly labels a tax package the ‘Inflation Reduction Act’. Add to that the insistence that trans people are actually not just trans but really men or women when they are biologically the opposite. And then the farce of ‘gender fluidity’ – really the left has completely lost all common sense and now they are in charge. God help us!

  9. Turley misses a few steps here. To begin with a subpoena was issued by the J6 committee last fall for the documents. Trump sued to block the Archives from turning over the documents to the House. The Supreme Court, citing Nixon, said the subpoena must be obeyed. In January 2022 Archives turns over records, including some that had been ripped up and repaired using Scotch tape. People Magazine wrote at the time that Trump often ripped up letters and memos after reading them and that his staff would retrieve and repair them. This apparently was a long standing practice he brought with him to the WH. In February, the Archives asks Trump for 15 boxes of records removed from the WH when he left. Trump invites Archives people to MAL to review materials. During examination, Archives officials note classified materials among the documents at MAL. In June DOJ investigators visit MAL to discuss release of the documents. Later, they instruct Trump aids to double-lock and secure room holding disputed documents. Last Monday, FBI uses criminal search warrant to seize the disputed materials. The affidavit for the search warrant would fill in the gaps. For example, why now and why a search warrant? Did an FBI informant at MAL report that the sought after documents were about to be removed or destroyed? They already knew what the documents were, having reviewed the contents of the “15 boxes” in June. The extensive search of the property suggests the documents described in the search warrant were not found where expected. Yes, the “delusional” idea that the search would be quick and uneventful turned into anything but. A search that takes nine hours to complete with a tem of 30 agents suggests they were unable to locate what they came for. We shall see if and when the affidavit is unsealed.

    1. That is cute, the extensive search suggests the records were not in the storage room. How old are you? Is this your first time thinking?

      1. How old are you? Is this your first time thinking?

        The 15 boxes would prove they were in the room locked by the DoJ with DoJ locks. All in tact, all just where they were left..by the DoJ.

        The other 9 hours and 25 minutes? free roaming game of were’s Waldo.

        Of course the Govt crimes start with putting spies on the MAL payroll. Were is the legal basis for that?

  10. Delusional? One can only draw that conclusion, if one believes the lie that they wanted a low profile raid. A low profile raid would not include 30 armed agents with a huge police escort. They received blowback that was unexpected, and are now trying to cover their a**. I suspect they expected to find other evidence not on the warrant. I also suspect they did not find anything, since if they had – they would have “leaked” it. But maybe they have learned not leak every little thing.

  11. Then two days later we see the president and Hunter Biden going on vacation??? How tone deaf is the Biden team that they would give Hunter such a prominent place while Democrats are yelling “nobody is above the law”?

    In another example of unbridled hubris and hypocrisy we have Hunter Biden about to be charged with tax evasion (he will get the Democrat wrist slap) and Joe Biden being a known tax cheat now pushing his bill to hire 87,000 IRS agents to go after the middle class for tax audits. This is the climate warriors flying to Davos on private jets, Pelosi family buying stocks, Hunter lying on a federal gun form and John Kerry being the “Climate Czar” level of hypocrisy.

      1. “. . . on vacation.”

        *That* is a typical Soviet move.

        Wreak political terror. Then escape to your Dacha.

  12. There can always be a good faith dispute as to whether records are essentially “public” or “private”. Didn’t HRC claim that 33k emails were private in nature, dealing with weddings and such. The government is not always right.

    1. Didn’t HRC claim that 33k emails were private in nature

      President Trump claimed he had not documents that he should not have.

      All you need is the ‘claim’ right?

  13. The heavily armed early morning raid to arrest Roger Stone? After the FBI called CNN to make sure it was all on TV. Peter Navaro put in leg shackles at an airport. Now a raid on an ex President, when a simple subpoena would have sufficed.

    This is nothing less than Government Terrorism.

    Wray has not resigned. That means Biden and Garland gave full written approval

  14. The allegation is that Trump illegally kept classified material. This is not a PRA case. Bring a former president does not make you immune to laws.

  15. The Tide has turned. The masks are fully off. An Acts Chptr 5 like moment with Ananias and Sapphira.

  16. Reporting yesterday claims the warrant was only shown, and not given to Trump lawyers who were banned from the entire Mar a Lago property. Also no inventory was left.

    Between the media and dem talking point (yea I know, same thing) facts are weeks off. Right after the SCOTUS leaker is ID’d

  17. The best meme I’ve seen so far, was a picture of Trump at the back of the safe, giving the double barrel middle finger salute! 🤣😂🤣😂

  18. “Equal Justice under the law.” In a just and civilized country, doesn’t everything legal return to that statement? That is the legal version of morality’s “Do unto others as they should do unto you” principle. They are the same. We should expect and demand nothing else.

    1. You mean like Russia Gate, Hillary, Hunter and Biden?

      The line has been crossed. Civil War appears inevitable.

      The left acts like the National Socialist Worker’s Party. I seriously doubt we have midterms most likely Mad Max.

      We the People will not go silently into the night. Not with 700 million guns.

      The IRS job posting was OUTRAGEOUS! Must be willing to carry a gun and use lethal force. Wow that’s the mindset? That knife cuts both ways! 87,000 goons against 100 million gun owners? Say when.

      Marxists always goes scorched earth. Did I mention We the People have 700 million guns? The 2nd Amendment is the remedy for Government Tyranny.

      1. About those 87,000 thugs…

        “We cannot continue to rely only on our military in order to achieve the national security objectives that we’ve set,” Obama said. “We’ve got to have a civilian national security force that’s just as powerful, just as strong, just as well-funded.”

        1. The IRS isn’t part of the National Security workforce. The additional hires are there to go after tax cheats making over $400,000 annually. Not sure why you’re against going after wealthy tax cheats.

  19. This was truly a stupid move by the FBI, especially if this was just archives that were in dispute. It truly has galvanized the Republicans, even those who are not Trump supporters, with maybe the exception of the Lincoln Project. The question is what will the rest of the people think. Will it look like the FBI is out of control or is it more sinister and an attempt to intimidate the former President. It would have seemed that an even more low profile resolution would have been a phone call from the Atty General Merrick Garland, saying we want these materials and a subpoena will be following explaining all that we want. And ask for cooperation. All theatrics removed and would likely have resolved the situation if this was just about archives. I believe phones in Washington DC and Florida still work and there Are these wonderful new instruments called cell phones that make it even easier.

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