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. From Sky News.

    If Trump hid classified documents on Hunter Biden’s laptop they would never see the light of day.

  2. In Dec 2020 polling indicated that 6% of democrats who voted for Biden would have either not voted or voted for Trump had they known about the hunter biden laptop.

    It is very hard to know alternate history for certain.
    I provided you a long list of 2020 factors. Eliminate ONE of those and Trump wins.

    Trump currently has about a 5pt lead in a 2024 matchup against Biden.

    I do nto think there is a snowballs chance Biden runs in 2024.

  3. It seems Anonymous the Stupid you need a dictionary so you learn how words can be used. I didn’t know you were that ignorant. Indictment is the wrong word in this situation. You needed to focus on the word faced.

    ===self deleted: “Seems someone needs to review what it means to actually be indicted.”

  4. Why is it that left wing nuts constantly appeal to journalists as experts on everything – or worse to journalists citing unnamed sources as evidence of facts ?

    Fif the author of your atlantic article ever hold a security clearance ? Did they receive government mandated training regarding classified documents ?
    Are they a lawyer in the security field ? Are thy a lawyer in any field ?

    Given that the answer to all of these is likely NO, Why should a take their words as more meaningful than those of someone who held a TS/SCI in the past, and who received Government training in classified document handling as I HAVE ?

    Why should I take the author of this article more seriously than attorney’s who disagree ?

    Finally, Why should I take as fact a WaPo story from an unnamed source over the explicit statements of those actually involved ?

    You do not seem to have a clue how to assess credibility.

    1. RE:”Why should I take as fact a WaPo story from an unnamed source..? You shouldn’t!! No one should! The warrant made public contains nothing more than a laundry list of numbered boxes and several items identified.. Until ‘Official Washington’ as opposed to ‘Urinating Washington’ and ‘They Who Shall Not Be Named’ publicly explains why the contents therein demanded a search and seizure over a subpoena to break the stalemate which existed between Trump’s team and the Fed, and what was actually found, the nation and the media should take a break. The DOJ/FBI track record on warrants, the evidence to support them, and the judges who sign them, is dismal and hardly a confidence builder.

  5. You seem to think that just saying something make it so.

    The reason that the President’s power is so limitless regarding classification – is that all executive power flows from the president.
    Nuclear classification is no different. Congress can not change the basic nature of the presidency without amending the constitution.

    Your atlantic article is possibly correct that Biden MIGHT be able to reclassify something after it has been declassified.

    But First amendment cases from the 60’s and 70’s regarding publishing atomic bomb plans suggests otherwise.
    There was no ultimate court resolution – mostly because the government dropped the case to avoid losing.
    But the court telegraphed essentially that once the genie is out of the lamp – you can not put it back in.

    Once something is declassified AND it is publicly accessible, it would be a violation of the first amendment to reclassify it.

    Separately, even if something is declassified, removed from government control and then reclassified – it would be a violation of several constitutional rights to try to subject a person who came into possession of it while it was declassified to criminal sanctions that would otherwise result from their handling of classified material.

    And Finally, the application of the espionage act to Trump as a private person is quite different to its application to a government employee.

    As a private DoD contractor with a Top Secret Clearance. It was repeatedly made clear to me that mishandling of classified information would get me fired.
    To be subject to criminal prosecution I would have to provide classified information to an enemy foreign power.

    Generally, mishandling of classified information is most severely punished if you are in the military, Where the consequences for even innocent mishandling with little or no risk of actual discloser can still result in severe criminal sanctions.

    The next lessor level is mishandling of classified information by government employees holding security clearances – particularly ranking members, and members of intelligence services.

    The next lessor level is private individuals working for government contractors with security clearances.

    And the last is ordinary citizens.

    As of Biden taking the Oath of office Trump is no longer a government employee. He retains his security clearance – that is a routine courtesy for the benefit of government that is extended to former ranking government employees. It is likely that Trump is still subject to a duty to protect the actually classified information he might still posses – as an example if he made it available on a mail server on the internet that might still be a crime for a private person with a courtesy security clearance. while it would ABSOLUTELY be a crime for a ranking government employee.

    Put simply the expiration of Trump’s term as president does not suddenly make any classified information in his possession at that time that would have been legally in his possession previously a crime – regardless of its classification level. While a current government employee possessing classified materials outside of a SCIF or other secured facility – would be a crime. And placing them on the internet would be a very serious crime.

  6. What other Zany things ?

    If you are going to defame someone – do so openly and with specificity.

    You can not even manage more than superficial insults or criticisms.

  7. How is my inability to foresee numerous events that no one else foresaw either relevant to my ability to analyse deliberate choices of democrats ?

  8. Trump would have beaten Biden by 10pts but for covid, Mailin voting, voter fraud, lawless elections, and media suppression.

    Covid is an unforeseable. Parties and candidates have to take those as they come.

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