Why the Case Against Donald Trump Remains Incomplete

Below is my column in the Hill on the lingering questions concerning any prosecution of former President Donald Trump for the retention of classified or sensitive material. As previously discussed, the three referenced criminal provisions do not require classified status of documents to be the basis for prosecution. However, if the documents were declassified, it would make any prosecution very difficult, if not untenable, though the obstruction count could be based on affirmative false representations made to the government. The point is only that we still do not have sufficient information to judge the basis for the raid or the prospects for prosecution despite the often breathless coverage.  The affidavit remains key to ending this speculation and quelling conspiracy theories. That is why Attorney General Merrick Garland should call for its unsealing.

Nevertheless, figures like John Dean are saying that defenders of the former president will “have egg on their faces” when this case is done and presumably Trump is prosecuted. Perhaps, but what is clear is that there is no such risk in others claiming an array of proven crimes for six years that were never charged. Figures who pushed the debunked Russian collusion, incitement, or bizarre attempted murder claims are now claiming with the same certainty that conviction is finally at hand. Once again, before the eggs fly, the release of actual evidence would be useful.

Here is the column:

The FBI’s raid on former President Trump’s Mar-a-Lago residence was received by many with joy bordering on ecstasy. Comedian Stephen Colbert declared the raid to be Christmas come early, while others joked about the possibility of executing Trump as a spy. Yet the celebration may be another triumph of hope over experience, with pundits again declaring an open-and-shut case without seeing the actual evidence.

The problem is that much in this investigation remains unknown and much of the analysis seems more visceral than legal. While details may be forthcoming that will fill in the glaring gaps, any prosecution on the record we know today would face novel — and potentially insurmountable — questions.

At the risk of being a killjoy, here is what we know and don’t know about these charges.

We know at least one set of the documents recovered from Trump’s home was marked as “classified/TS/SCI” or “top secret/sensitive compartmentalized information.” There were four sets of top-secret documents, three sets marked “secret” and three marked “confidential.” Trump has no right to retain classified information after leaving office, particularly information classified at the high TS/SCI level.

The warrant used by the FBI in its search expressly allowed the gathering of “all physical documents and records constituting evidence, contraband, fruits of crime or other items illegally possessed in violation of 18 U.S.C. §§ 793, 2071, or 1519.”

The inclusion of an alleged violation of the Espionage Act (Section 793) lit up the internet. It seemingly doesn’t matter that the Espionage Act has long been denounced by civil libertarians as a vehicle for political abuse by the Justice Department. It also doesn’t matter that a charge under the act does not mean there is actual espionage or foreign intelligence involved in the case. Rather, it addresses alleged acts of unlawfully “gathering, transmitting or losing … defense information.”

Surprisingly, the warrant did not specify which section of law might be the basis for a criminal charge. One possible provision is Subsection (d) covering those who lawfully possess documents but had “reason to believe [the information] could be used to the injury of the United States or to the advantage of any foreign nation.” This subsection allows for a charge of willfully retaining or failing to deliver such material “on demand” to an officer or “employee of the United States entitled to receive it.”

Subsection (f) is even more generous to prosecutors. It allows a criminal charge for “gross negligence” leading to protected information being “removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed.”

Section 793 was cited as the basis for the 2016 investigation of Hillary Clinton in her email scandal. Clinton gathered and transmitted classified (including “top secret”) information as secretary of State. She and her staff also were criticized for failing to promptly supply evidence. Nevertheless, then-FBI Director James Comey declared that “although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”

The Justice Department explained in an Aug. 16, 2016, letter to Sen. Chuck Grassley (R-Iowa) on the Clinton investigation that, although the statute allows for gross negligence charges, prosecutors have long balked at the “constitutional implications of criminalizing such conduct without requiring the government to prove that the person knew he or she was doing something wrong.” The Justice Department said it also rejected 18 U.S.C. § 2071 with regard to Clinton — the same section referenced in the Trump warrant in willfully and unlawfully concealing, removing or destroying federal records.

The final provision mentioned in the Trump warrant, 18 U.S.C. 1519, concerns destruction, alteration or falsification of records in federal investigations. This charge could be based not just on government documents in Trump’s possession but on allegedly false inventories or lists given to federal officials during months of discussion about the documents.

These crimes still require intentional or knowing acts. (They do not require classified status as an element). With Trump lawyers negotiating the status of the documents and previously turning over some material under subpoena, there is a plausible defense based on Trump’s belief that the material was no longer classified and that his team was cooperating with officials in trying to resolve any disputes. If Trump believed the material was declassified and relied on legal advice to resolve any disagreements, then prosecutors would combine an unprecedented legal case with a heavily contested factual record.

At the heart of such a case would be a very novel legal question. While many legal experts have cited the detailed, demanding process for declassification, some fail to note that presidents have long exempted themselves from declassification procedures. Indeed, Trump claimed the right to declassify material unilaterally and orally at the start of his term.

Other presidents have asserted exemptions from declassification authority. An order by former President George W. Bush stated such an exemption for “information originated” by a president. That order was reaffirmed by former President Obama in Executive Order 13526 in 2009 and expressly exempts presidents, vice presidents, their staffs and “other entities within the Executive Office of the President.”

Trump also reportedly had a standing order that declassified any material he removed from the White House to take to Mar-a-Lago or other locations. We have not seen that order, and it is not clear if such an order was shown to the FBI.

If that standing declassification order existed, it ended with his presidency, of course. However, it still existed when these boxes were taken to the resort. There may also be complicating logistics for investigators: If the documents were taken out of the White House on the last day of his presidency, the classification markings on the cover pages and internal headings might not have been crossed out.

There has never been litigation on the scope of this exemption or a president’s declassification authority. Nor is it clear whether any standing order was disclosed to the judge who approved the FBI’s warrant — but it could create a threshold legal challenge to a criminal charge.

The Trump team insists this defense was raised when an earlier subpoena was served at Mar-a-Lago in June. Nevertheless, it reportedly turned over 15 boxes of material, including classified documents, and replaced a lock on the storage area for enhanced security. But it is not clear whether the FBI raised concerns over the remaining material or sought its return before this week’s raid.

In asking the judge to unseal the warrant and the list of documents seized, Attorney General Merrick Garland declared that “the Department of Justice will speak through its court filings.” But he omitted the key filing that would speak to these issues: the underlying FBI affidavit.

In the meantime, pundits are discussing Trump’s disqualification from future public office based on his expected conviction. Even if convicted, such a disqualification would be flagrantly unconstitutional — but, when it comes to Trump, neither the law nor the evidence ever seems particularly important to the analysis.

However, a judge may have slightly greater expectations before these charges ever see a day in court.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

254 thoughts on “Why the Case Against Donald Trump Remains Incomplete”

  1. He declassified them when he was president, what is in them that made the doj go so hard after him? We all know the answer, incriminating evidence against the fbi itself. These stasi agents will do anything to hurt Trump and piss on the constitution. The president has SOLE authority to declassify and Trump has a witness if needed. This in and of itself should end all this produced hysteria. Navy vs Egan set the precedent

  2. I don’t trust the people running our government, the people responsible for reporting on the people who run our government, and the people who support the people who run, report, and unfairly benefit from the mismanagement of our government. Drain the Swamp.

  3. Why is anyone giving the DOJ/FBI and legacy media the time of day let alone taking them seriously? Mock them, ridicule them, and dismiss them as the propagandists they really are.

  4. Best “Board and Debate”, ever, here today, and thanks to all. Problem is, as always, since the beginning of “Civilization” is, what to do about those (At the Top, especially) that still insist on harming us with “Law and Lawlessness”? Clearly, reliance on Our Government and our Justice is of little or no use, so…???

  5. Jonathan: Trump hasn’t even been charged. He is only being investigated. You are writing like it’s only a matter of time before he will be indicted. I thought the memo from your boss said not to talk about Trump anymore? Either Murdock changed his mind or you have gone off the reservation. In any case, shooting from the hip, making false statements about the search of Mar-a-Lago ( e.g., your claim there was no subpoena) and engaging in wild speculation is not adding to the need for some clarity in this case. But you just make the sweeping claim the “case against Donald Trump remains incomplete”. It’s close to what you have said about the J.6 hearings–“no evidence Donald Trump has committed any crimes”. You have already made up your mind and no facts or evidence will sway you. Yes, of course, the case against Trump is “incomplete”. The FBI search is barely a week old. It will take weeks, if not months, for the DOJ to carefully examine all the docs retrieved from Mar-a-Lago and decide whether Trump should be charged. We are a long way off from that. And there is the possibility AG Garland could decide there is no basis to charge Trump. I seriously doubt that considering how many top secret docs Trump purloined.

    Now you claim Trump has a “plausible defense based on [his] belief that the material was no longer classified”. Whatever Trump’s “belief” that is irrelevant. Some Trump supporters claim, erroneously, that Trump could just wave his magic wand over the boxes of top secret docs, as they were being carted out of the WH, and they magically became “declassified”. That’s the most bizarre thing I have heard to date. Top secret docs, especially those involving nuclear secrets, don’t get declassified. And even if the president wanted them to be, there would be a thorough vetting process by a host of government agencies–including the DOD, DOE, etc. There is no evidence Trump tried to declassify classified or top secret material while he was in office. What we do know is that during his time as president he had a cavalier attitude in the handling of sensitive material. He pretty much ignored the Presidential Records Act–tearing up or trying to flush official docs down the toilet. Trump did have a “belief”–the belief that the law didn’t apply to him. You just engage in wild speculation, but now asserted by Trump, that he had a “standing order” to declassify material. So, you say, perhaps there were a lot of declassified docs Trump took with him but someone slipped up because “the classification markings on the cover pages and internal headings might not have been crossed out”. Can you really say that with a straight face? I think the reality is that in the last days before he was forced to leave the WH Trump made a frantic effort to take any docs he thought might benefit him later–personally, politically or economically. The least of his concerns was the official status of any doc he decided to take with him. Of course, you miss the salient point that even if Trump took with him docs that all had been declassified he would still be criminally liable under the three federal statutes at play here.

    Whatever happens, Trump is in dire need of competent counsel–not the lawyers he now has who allowed docs covered by the attorney/client privilege to be co-mingled with other material sought by the search warrant. No competent lawyer would do that. They would carefully segregate any material they thought was covered by the privilege. If Trump has a legitimate complaint that docs covered by the privilege were also scooped up by the FBI he should have fired his lawyers–not complaining to the DOJ. So I think Trump could benefit from your counsel–say over the issue of whether, if convicted, Trump could be prevented from ever running from public office again. You say: “[e]ven if convicted, such a disqualification would be flagrantly unconstitutional”. Sure, try to convince Trump to run while he is in prison or after as a convicted felon. Good luck with that one!

    1. Dear goodness, someone is in the employ of the Deep State!

      OF COURSE it’s just a matter of time before indictments against Trump are filed. The verdict was determined seven years ago, they’ve just been unable to find an actual crime.

      Every POTUS has a unique, absolute, unlimited power over State secrets direct from the Constitution. That power makes them literally immune to ANY charge stemming from laws or regulations about secrets, because his Constitutional power trumps any mere law or bureaucratic regulation – or even EOs, which do not have the force of law. Therefore there is ZERO possibility that this warrant was legitimate.

      So sad for Democrats, the only ones likely to see prison regarding this warrant are Garland and the foolish judge who agreed to sign the warrant.

      1. Another person who doesn’t understand facts. There’s a process and it was not followed. Trump could never just “wave his hands” for a declassification fait accompli.

        1. Any process is irrelevant to the president (and vice president).

          You do not understand the constitution. All executive powers are powers of the person who is president.

          If Biden taks a copy of the President’s Daily Brief – one of the most highly classified government documents, over to the east wing with him to review in the evening – has he violated the espionage act ?

          The East win is NOT a SCIF. In arguably if Biden was Sec. State – removing a copy of the PDB from the west wing would be a crime. But it is not a crime for Biden to ignore the process.

          If Biden hands a copy of the PDB to the israeli ambassador to review some item – is that a Crime ?
          No one else can do that legally. It violates process.
          But it is not a crime.

          The current president can declassify anything – just be acting as if it is not classified.
          This is true of ALL presidents while they are president.
          It is only true of Presidents – though Obama’s EO gives similar authority to he VP.
          It is not true of anyone else.

          Further to change this you would have to change the constitution.

    2. This “reply” is nothing more than the opposite spin to Mr Turley’s arguments which he at least clearly called his speculations. You sir make false and incomplete assertions without that benefit. Finally, whereas, mr Turley avoids use of gratuitous embellishments of vocabulary, you seem to go out of your way to bolster points with their use…. The definition of a weak or incomplete argument.

      I think that the howling on the part of those seeking the destruction of Mr Trump, including you sir, need to tone it down lest you reap greater undesired results.

    3. “Jonathan: Trump hasn’t even been charged. He is only being investigated. You are writing like it’s only a matter of time before he will be indicted. “

      Dennis, you need to be more careful when reading. Trump is being investigated by the left’s lawless attempt to affect the election and remain in power. I won’t comment on the rest because it is obvious you wish to ignorantly vent rather than discuss. That is what happened in our prior discussion.

      1. OMG, this is worse than Zero Hedge. When reality is derived from OAN, Newsmax, etc it redeems my belief in the human ignorance.

      2. S, Meyer: I am very careful “when reading”. You, apparently on the other hand, don’t require any reading to bizarrely claim the FBI search of Trump’s home was “the left’s lawless attempt to affect the election and remain in power”. Do you really think Christopher Wray is part of some “leftist” conspiracy? He is a Republican appointed by Donald Trump. Do you think AG Garland is also part of some plot by the “left”? Do you think that Judge Reinhart, who approved the search warrant, is also part of some “deep state” conspiracy to keep Trump out of office? He was also appointed by Donald Trump. If you do believe in such nonsense you are in need of a reality check. You are living in an alternate universe where facts don’t matter.. As to our “prior discussion” there was no discussion. I tried to engage you in a discussion of Dr. Gilley’s views. You never took me up on my offer. So I must conclude you are the one who wishes to only “ignorantly vent rather than discuss”.

        1. Dennis, people have various reasons for doing what they do. Not all are deeply political, so I won’t make a judgment on Wray other than he hasn’t put the FBI on the right track. Remember, I was offering my opinion of one possible reason the FBI raided Trump’s home.

          You seem to think Party is the only thing that counts. Trump was a Republican President. Look at how many Republicans fought against him. The problems we face frequently are not Party motivated, they are motivated by self-serving legislators. I can’t help it that you base your opinion with a lack of sophistication regarding human beings and their motivations.

          “I tried to engage you in a discussion of Dr. Gilley’s views. You never took me up on my offer.”

          I took you up on your offer and never heard from you again.

          I said “Dennis, I provided you with the ability to have a fair discussion of colonialism in India avoiding complicating issues. You haven’t responded. Are you thinking about the discussion or are you going to avoid it?”


        2. Dennis, shortly after posting to you I found this article mailed to me by Gatestone. I thought you might be interested. It focusses on one individual but it could just as easily focus on a lot more.

          ‘Those Who Pursue Self-interest through Politics’

          “Government is itself an art,” wrote the late US Supreme Court Justice Felix Frankfurter, “one of the subtlest of the arts. It is neither business, nor technology, nor applied science. It is the art of making men live together in peace and with reasonable happiness.”[1]

          Of course a leader should be able to do both – “making men live together in peace and with reasonable happiness” – but what if there are leaders or the people around them who are, as Frankfurter noted, “those who pursue self-interest through politics”[2]?

          As previously asked on these pages, are union moguls, lobbyists and advisors, power players and profiteers trying to do end runs around US election laws (here and here) and the Constitution (here and here)?

          cont: https://www.gatestoneinstitute.org/18810/self-interest-politics

    4. Dennis, it is nice to see your cordial balanced intelligent reply to Turley’s posturing. Jonathan used to be balanced and intelligent but the highly transmissible form of mental illness spread by Mr. Trump has easily captured his mind.

    5. But you just about summed it up….Who took the documents from the white house to mars lago? Who intermixed priviledged document.s? ….”Who who who” hadley? Who boxed them up? Where is the men’s rea….that a reasonable prosecutor needs to get over the Clinton precedent? What they need is to show trump knew x was classified and ordered delivery despite that! We can’t have resident superior in criminal liability like contemplated here. If the president has to personally go through all documents for some ‘marking’ our presidents would be unable to do their jobs. So if by negligence – it lies with the boxer uppers….et al…not trump himself…..kinda like the lied on the fisa warrant landed on the lawyer who failed and lied….not comey or lynch. Who were by these standard negligent too. But no reasonable prosecutor would prosecute them according to that regime. So for trump they need intent….which begs the probable cause standard to even get a warrant…..If the elements of a crime require intent …shouldn’t it follow that to get a wRrant…some showing is necessary that it’s more probable than not …the alleged defender had men’s tea that govt can prove? Or does probable cause simply stop at one strict liability element….it’s in your house so Walla you’re a spy? . No the doj are not insurance companies who can sell coverage based on lies of liability. …making people think in terms of strict liability. It’s heavy armed and is suppose to defend our constitutional rights….it and run them.

  6. “[T]he lingering questions concerning any prosecution of former President Donald Trump . . .” (JT)

    Those “lingering” questions were answered by King George: “I am the Sovereign. Those who threaten my absolute power will be slapped with a General Warrant.”

    “General warrants” were issued by King George to subdue the Colonists, and to terrorize political opposition. They were a primary impetus for the American Revolution and the Fourth Amendment. They are, of course, unConstitutional.

    “The primary concerns of the generation that ratified the Fourth Amendment were “general warrants” and “writs of assistance.” Famous incidents on both sides of the Atlantic gave rise to placing the Fourth Amendment in the Constitution. In Britain, the Crown employed “general warrants” *to go after political enemies*, leading to the famous decisions in Wilkes v. Wood (1763) and Entick v. Carrington (1765). General warrants allowed the Crown’s messengers to search without any cause to believe someone had committed an offense.” (Emphasis added.)


    1. I’ll trust your analysis….because here this probably was a fishing exposition. And they got all their bases covered…on one hand they can say they need it sealed….And can plausible debt it wasn’t to deal re trump…..but the needed to reveal the “deep state’s ‘ who abused ‘color of law’s ‘…. It’s just like dominion…..And their defamation suits. On one hand their contracts are illegal….but they put judges in power. So then when election officials balk they say damages are billions not just the million the jurisdiction spent. Yet that’s what they do. They convert a govt contract …..into billions in damages for what is illegal to contract out in the first instance. Die bold. Thing is after Clinton’s partnership with the “greAter European expansion’. She …none them know who to trust. They think we don’t know we got hippa & hoops by bills agreement with commerce…..They think we are stupid. No who who who Russert are stupid? What you gonna give me blood clot and no one will notice. I have pure piatience. . my breheran are armed. ….is that what trump had…And declassified? How you sons birches dont out an Egyptian in charge of our special ops? And 2x sent him without support….to fulfill your…..reset….while taking advantage of our oaths…..Who works for who here? Your draft our daughters plan still doesn’t cut it. We are america…not the sobs..If trump had those clAssified docs….show them I. Court…..show a judge

      1. You can blood clot me…. But you can’t blood clot ally cat. Besides the Brits already ” fessed up”. ….so you can’t win. They have no clue who is actually in their side….benevolent have no control over stuff???. The guy fired from his and role….@dns…2008. .They have no control ! It’s like a problem they ignore. I dont. I expect honesty out of the media and doj. I expect that honesty today! Because they have no clue…..meanwhile a decade we got funded!!! Is that what trump was declassifying? What was trump hiding?

        1. Of trump was squirming away in his pocket…..how 2008 went down….then who is trying to get it? Him or the deep state? Seems like the deep state doesn’t want people to e can know how america forgot hipoa…..Or their ‘ acknowledgment’to be big dramas guy as gianeapigs. We’re the classified docs at marolago….how the European commission for us hipoa? And with covid? And all those shennigans?

          1. They got nothing I. Trump! They are afraid he’s going to deckassify….their lajes 86… 545499a hostage job. Where Bush sold out our country. To save his ass. They don’t want want to hurt the fact they funded a special ops unit who had a loyal Egyptian in charge. Instead of an american. They don’t want to admit that 2 x that Egyptian sent Americans over unarmed! Putting american lives risk. Is that what trump had at mralogo? Asking for a pig friend of mine.. In the sow.

  7. I would just like to remind people that the DOJ and FBI track record of trying to make a crime stick against Trump goes back to the 2016 election and the fake dossier . There were 18 DOJ and FBI people either fired reasigned or quit over the spying on Trump and Kiven Clinsmith plead guilty to a felony and should have been disbarred instead of a slap on the wrist . That was the start on the down hill spirial of the FBI and political corruption . Garland and Wray can not hide behind the pretense of we can not speak of a on going investigation . Everything thing needs layed out for all to see if there was a crime that Trump committed or is this a political persecution and the start of the democrats banana republic .

    1. Correct. The FBI as constituted cannot be fixed, because it is broken by design. POTUS is absolutely immune to any legal charges concerning State secrets, because POTUS has a UNIQUE, absolutely unlimited power to define what is and isn’t secret. That means that he is subject to no law, executive order, nor bureaucratic regulation – all of which are subordinate to his direct Constitutional power. If POTUS takes documents with him into retirement it is implicit that those documents were declassified and that he has permission to possess them. Only if an ex-POTUS were to receive classified documents AFTER retirement could they possibly be subject to such charges.

      “Citing the President’s constitutional role as Commander-in-Chief, the Supreme Court has repeatedly stated in dicta that “[the President’s] authority to
      classify and control access to information bearing on national security … flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”

        1. Did Trump go back to the WH after Biden was sworn in to remove these documents ?

          If not he was POTUS when they left. q.e.d. they are declassified

        1. BZZT wrong. Congress can not give to some part of the executive a power than does not also belong to the president.

          Constitution A2 S1
          The executive Power shall be vested in a President of the United States of America.

          BTW the nuclear materials story has died – it was an anonymous source leak, no one is pushing it anymore.

          It is just like all the Collusion Delusion leaks.

      1. Oops, yet another case of the incredible delusion embedded in “beliefs” rather than facts. How do people arrive at thinking blatant nonsense is true? NewsMax? Ah well, facts are inconvenient and there’s the wild card of transmissible mental illness. So, whatever… By the way, you might want to fix your calendar, Biden is POTUS.

        1. Biden became POTUS on Jan 20, 2021. He was not before.
          The US has only one president at a time.

          You have this bizzare idea of how time works.

          If Biden is not POTUS on Jan 20, 2025 – does that mean everything he did from Jan 20, 2021 – Jan 19, 2025 is suddenly null and void ?

          Biden has the power to reclassify anything Trump may have declassified.
          But he does not have the power to make mere possession of a formerly declassified document into a crime.

          Please read the Espionage act – it is about ACTIONS, it is about unauthorized removal of classified information from the classified system. It is about providing it to those who may not have it.

          Did Trump struck a deal with Elmer Fudd for these documents ?
          If not you have no crime.

  8. “That is why Attorney General Merrick Garland should call for [the affidavit’s] unsealing.” (JT)

    The DOJ has just demanded that it remained sealed. Wonder what they’re trying to hide, this time.

    1. It’s totally standard to keep affidavits sealed unless/until someone is indicted. It’s the exception to unseal them prior.

      1. How many times does Anonymous the Stupid say “It’s totally standard “ until it is proven a lie.

        Everything including the Steele Dossier, the Russia hoax, the spying, the indictments are totally standard to Anonymous the Stupid. That is his default statement for promoting lies.

      2. And yet this is an utterly exceptional circumstance, casting into doubt the agency has ANY remaining integrity.

  9. well someone has written a column about NARA’s role
    ““As we were moving materials from the White House just before the inauguration, those boxes hadn’t shown up yet,” Ferriero said. The retired archivist then explained how he remembered “watching the Trumps leave the White House and getting off in the helicopter that day, and someone carrying a white banker box, and saying to myself, ‘What the hell’s in that box?’” According to Ferriero, “that began a whole process of trying to determine whether any records had not been turned over to the Archives.””

    1. The box probably contained a red swingline stapler and a DJT bobble head. Office clutter.

    2. It doesn’t matter what was in the box. POTUS has a direct grant of power from the Constitution giving him absolute, unlimited power over State secrets. This power, being direct from the Constitution, is not subject to any legislation/law; bureaucratic regulation; Executive Order; nor “Congressional oversight.”

      This makes the warrant problematic, because 2 of the Statutes quoted were about State secrets (to which he is literally immune) and the third is almost nonsensical about “falsifying documents.” Had he falsified any document IN THE GOVERNMENT, they would not have been looking for them in his home – and likewise any documents he may possess, even if he modified them, are implicitly declassified and irrelevant for government purposes.

      “Citing the President’s constitutional role as Commander-in-Chief, the Supreme Court has repeatedly stated in dicta that “[the President’s] authority to
      classify and control access to information bearing on national security … flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”

      Sorry, Democrats – not only is there no crime here by Trump, there CANNOT be. In fact, the only ones who may see prison time would be Garland himself for demanding the warrant and the foolish judge who signed it.

    1. How does Turley square this fact: In 1987, the Supreme Court (again) made clear the President has constitutional power, as commander-in-chief, to classify and declassify. Regardless of any statute passed by Congress. Did AG Merrick Garland obtain an OLC opinion before ordering his illegal Trump raid? Why not?
      OLC = Office of Legal Counsel

      1. As Turley pointed out, the criminal laws that are the basis of the search apply to documents regardless of their classification status.

      2. Correct – Trump is IMMUNE from the statutes listed in the warrant.

        The only ones likely to face prison time over this are Garland himself for ordering the warrant, and the foolish judge who signed it.

          1. That is correct – they are not crimes when they are actions of the president.

            Please actually read Obama’s EO on classified documents, that will clear a whole lot of things up for you.

    2. They did take the passports…illegally. The media lied as did the doj. Trump has passed along the email from the doj concerning this matter. They returned the stolen documents. They are liars, as it the msm.

      1. Correct. Coupled with the fact that POTUS is literally immune to the charges stated in the warrant, the only ones likely to face prosecution over this are Garland himself for authorizing it and the foolish judge who signed the warrant.

        Given POTUS’ immunity to any legal charges stemming from handling State secrets, this raid amounts to SWATing an ex President because of an overdue library book.


    ZOMBIE ALERT: How Insane are Washington Post Readers? (Unhinged WAPO Zombies Lap Up RUSSIAgate 2.0!)
    – A sampling of the UNHINGED comments posted on “FBI searched Trump’s home to look for nuclear documents and other items, sources say” showing HOW INSANE the regime’s minions have become!

    FBIsteria: Best FBI Memes (Rank and File Excuses!)
    – Making excuses for the FBI rank-and-file, FBI at work, in good company, Ron Paul is psychic, same old excuses, full of PRIDE, and more FBI and/or Mar-A-Lago raid memes!

  11. What I don’t understand is why the proven biased and corrupt institutions (FBI, Democrats, Media, Adam Schiff) responsible for the Russian hoax and the laptop hoax are given standing with the public.

  12. Professor Turley,
    It is my understanding that in such a raid, (one that has never occurred in the history of this nation) that the DOJ and FBI are to establish a taint team in advance who have no connection whatsoever or conflicts of interest to the investigation. Their job is to review all the confiscated material from the raid and to search for privileged documents and items that are not related to the scope and intent of the warrant. Based on the request to the DOJ by President Trump’s legal team for a special master to protect the President’s civil rights and privacy, it appears that they did not follow this procedure.

    The DOJ picked a judge who had recently recused himself from sitting on a case with the former President (based on his bias against the former President) in a case of Trump vs. Hillary. He signed the recusal on 22 June 2022. Why did the DOJ pick him? Why would a judge who has obvious bias allow himself to be involved in this matter?

    Thirdly, have they indicated where in the President’s home they obtained the documents? If the documents they sought were the same ones that had been put under lock and key by the Secret Service then this would be extremely odd that they should need a nine-hour raid instead of simply working things out with the President’s legal team.

    In taking such drastic action, it is most imperative in a free nation that the Attorney General immediately and unequivocally make clear statements with precise facts instead of the nebulous ambiguity that characterizes his and the DOJ’s position. All Presidents keep documents from their presidency for their library and for writing memoirs. How were other Presidents treated? Trump is not the kind of person who has the attention span to sit down and pour over records. I doubt that he even knew what the government workers packed up.

    If the DOJ did not appoint a taint team, if they have not appointed a special master, if the judge that signed the warrant is biased, then it would seem logical that nothing found in the raid would be admissible and these actions could backfire in the face of the DOJ, proof that they are interfering with a future political opponent in the race for the President of the United States of America. Impeachment #1 was about a phone call asking about the actions of then VP Biden withholding a billion dollars of aid to the Ukraine unless the President of that country fire the prosecutor investigating Burisma Holdings Limited.

    This begs the question why? Are the FBI/DOJ possibly this sloppy? No

    Is it intentional? If it is intentional, what is the objective of their actions? Time will tell.

    Bizarre and Orwellian, this event flies in the face of civil liberties and the protection of any and all citizens against unlawful or an unethical search. Is this for the media spectacle alone? Why 20 months after he left office? Why the timing now? Why the dearth of communication? Where is the ACLU? The media? If this could happen to the President of the United States, it can happen to any citizen of this nation. It will be interesting to see what is around the corner when the real facts unfold. No matter what is found, their methods are troubling, to say the least.

      1. DOJ responded to the JW request and Judges order.

        They said POUND SAND, you are never getting to see the affadavit.

        You can expect Merrick Garland to be impeached in 2023 if he does not turn it over to the house.

        We are going for FISA Warrant II

        1. The judge did not order the affidavit released. He hasn’t ruled on it yet.

          1. I am surprised – the Judge is going to hear oral arguments.
            I still highly doubt that we will see the affadavit.

            I am sure it is damning. The important question is whether it is truthful.

            Meanwhile the FBI has confessed – they took many things they were not entitled to.

            Passports ? Really ? In what world did the FBI think they could seize those ?

            It has claimed it is setting up an internal review pannel to examine what was collected – return what should not have been collected, and return privildged material to Trump.

            And if you beleive that – I have swampland in Florida for sale.

            And laws IG Horrowitz – you might remember him – has 14 active whistleblower complaints of politial bias within the DOJ/FBI that he is currently investigating.

        2. Also, as is standard, the court already has a copy of the affidavit, and if the judge orders it released, the court will release it regardless of the DOJ’s motion about it.

          1. In other words just like the FISA requests lying will be accepted as the truth until someone is able to pry out the truth from the justice department.

          2. Again – I am surprised that the Judge is haring arguments.
            But the odds of JW prevailing are extremely small.
            Their only hope is this case is very high profile and there is already a perception that the judge is biased.
            One of the best ways to disabuse the public would be to order the affidavit released.

            Still I do not expect that – I expect DOJ will fight release tot he supreme court if they lose at the district court.

            But maybe I will be surprised.

    1. Well written. The only “reason” I can think of is that the Democrats believe Trump WILL retake office – which is literally an existential threat to many, many DC Democrats. If they fail to stop him, they will likely face severe prison terms.

    2. …they picked this Magistrate Judge because they have dirt on him: think ‘Epstein’…and how ‘Epstein’ operated…hint, hiny, nudge nudge, wink, wink…get it?

  13. I would love for someone to delve into the role of the National Archives and the GSA with regards to the Presidential transition. Did NARA archivists review boxes as they were being packed by WH staff? I can’t imagine that Trump did the actual packing. If archivists did review the materials did they tell Trump staff that they were okay to send to Florida?
    Since day one NARA and by extension WH records managers were at odds with Trump, leakiing early on stories about Trump tearing up records. but we never saw any such evidence presented

    1. This all started because the archivist saw Trump get onto VM1 leaving the white house on his last day carrying a box.

      The packing of the whitehouse as well as moving in the new president are all done by the permanent wh staff and the GSA and they are done over a period of 6hrs.

      Trump is free to personally take things with him – but he is not going to pack and haul several hundred boxes onto VM1 on the way out.

      I do not know the exact process – and that may well be classified. But it is likely that Trump, and the entire non-permanent whitehouse staff has a signficiant role in deciding what gets packed.

      The left insists that these are all govenrment documents – that is FALSE, they are the presidents property and always have been. MARA is a custodian of the documents starting when the president leaves office until his presidential library is setup. Contra the left – it is not clear that any president MUST provide NARA with their documents.

      NARA also has a very significant role in classified document handling.
      NARA is responsible for DECLASSIFYING documents – that is because we do not trust agencies to declassify their own documents. NARA is doing an abysmal job at this, but they are doing better than agencies did before.

      NARA also has – like every single government agency facilities for handling classified documents.
      NARA does not classify anything – I am pretty sure that NARA has no authority at all to classify anything.

      1. I believe you have it almost perfectly. POTUS’ power over State secrets is absolute, unlimited, and comes directly from the Constitution – rendering him IMMUNE to any law/legislation; bureaucratic process or regulation, “Congressional oversight,” and even his own EOs as they are guidance not law – and in any case, the direct Constitutional law would allow “automatic override” of the EO.

        If POTUS says such documents are “his,” they are. If he takes them with him in retirement, they are implicitly declassified and he has explicit permission to possess them.

        NARA doesn’t come into it at all. A bureaucratic creature, it is infinitely subordinate to the Constitution and POTUS is free to disregard them.

        All that said, if POTUS COMMITTED to provide documents, he might be guilty of delay under Contract law. Oh, dear. So, in effect, Garland SWATed a former President because of an overdue library book…

        The only people at risk of prison over this warrant are Garland himself for authorizing it, and the foolish judge who signed it.

  14. Given the Leftists violent threats, doxing and near assassination of Catholic SCOTUS Justices, destruction, burning, and vandalizing many Catholic churches, monuments (Saint Juniper Serra monument and arson of San Gabriel Mission in California), and vandalizing many Christian pro-life pregnancy crisis centers across America, it appears the US is following the trajectory of Marxist dictators like Nicaragua’s Daniel Ortega. Religious groups are the first to be eliminated in Marxist tyrannies.

    The recent FBI raid, defended today by the Left, as being necessary to “save democracy” against Trump, is quite similar to what happens in Marxist dictatorships as to eliminating “counter-revolutionaries” like Catholic nuns.


    Nicaragua’s Marxist Dictator Cracks Down on Catholics

    The Catholic Church is under increasing assault in Nicaragua by its president/dictator, Daniel Ortega, and his radical socialist regime, according to numerous media reports.

    “The Catholic Church has been a common target of contempt and accusations of undermining the leftist regime,” reported the Heritage Foundation in an Aug. 8 commentary, “Christianity under Siege in Nicaragua.”

    According to the commentary, Daniel Ortega has long been openly hostile to the Church and has increasingly persecuted Catholics, calling bishops “terrorists” and “devils in cassocks.”

    The Catholic Church in Nicaragua has experienced more than 190 attacks since 2018, attacks ranging from exile of important priests and clergy, to arson, and government paramilitary attacks.

    Further, 18 Catholic nuns who were Missionaries of Charity were recently “stripped of their legal status” in June and escorted by police into exile in Costa Rica. The nuns were accused of “political subversion and supporting terrorism,” and exiled for their “crimes.”

    NB: The Missionaries of Charity are the Catholic religious nuns from Mother Teresa of Calcutta organization, the furthest thing from being terrorists. I worked with them in downtown Miami to care for the homeless, and they are inspiring holy women

    Like Merrick Garland putting parents of school aged children on notice, we are all suspected by the DOJ of being terrorists.


  15. After hammering Clinton relentlessly about her emails and records during the 2016 campaign, including with lock her up chants at his rallies, how could Trump be so careless, negligent, or willful with respect to Federal records and isn’t it appropriate to hold Trump accountable to a Federal records standard that he campaigned on?

      1. …another .. profound (illogical) proclamation from ‘anonymous..” Hillary’s willful siphoning off top classified documents & info to her own private servers and somehow their misappropriation and/or disappearance is not a criminal act… but Trump’s most likely not knowing what the GSA packed and moved in the boxes is criminal………..

    1. Clearly you have no idea what Hillary did vs. what Trump is accused of doing. Remember, we have Comey’s report, a finding of fact in the matter with Hillary – there is no such record for Trump. Hillary committed at least three felonies, knowingly doing the following.

      1. Using a private email address to conduct ALL official business for the State Department despite being trained not to explicitly and agreeing in writing not to do so. She was also warned in writing and in person by various information system and security leadership to desist using her Blackberry and the private email account. She was 100% aware that she was compromising classified information with her setup. Her consciousness of this can be demonstrated by her using

      . 2. She didn’t just use a Gmail account or some other email service – nope. She bought her own server and put it in her house in Chappaqua with MSFT Exchange on it. I’m in tech, by 2009, no small organizations did that anymore. they all purchased cloud services or used servers via cloud providers. Only large companies ran their own servers. Why would she do this? Because it would not be subject to any national security letters nor any requests a cloud service provider like Google or MSFT etc would provide. Because the physical server was her property, on her property, only a proper search warrant with probable cause would be acceptable to access it’s contents against her will. In the real world, this setup reeks of intent, if you were in tech like me you would see it.

      3. She ignored all FOIA requests that were made to the State Dept while there, providing no emails – that’s zero – in response to hundreds of FOIA requests in which she actually had many emails that she was required to provide under the law. This was only discovered by the public at large in 2014 due to other document requests to the White House that showed the White House and Obama corresponding with her via her private email. There were many people in the State Dept and elsewhere in government who were aware Hillary was using this account but not providing documents in response to FOIA requests.

      4. When all this was finally uncovered, the emails were subpoenaed. Keep in mind that they were actually the property of the U.S. govt under the law – and she deleted 33,000 of them. Some were later recovered via indirect means and there was certainly corruption and coordination going on with Clinton Global Initiative players and other relationships. She CHOSE which documents she’d give, this was not legal and violated the subpoena.

      She was never arrested or had a search warrant served on her property. She was only questioned with counsel present (7 lawyers accompanied her) over a 4th of July weekend very quietly, there were no recordings made and she made no sworn statements. And then Comey cleared her on national TV, violating every rule the FBI and DoJ have about such matters.

      Trump? This a dispute that I know happened with Bill Clinton after his term, there are often these fights about “Presidential Records” and what’s classified etc. And the idea that we can’t know what documents they are after, what they actually cited in their affidavit to the court is something I’m supposed to swallow? I’m willing to be bound by the law and the ‘rules of the road’ at the DoJ for how such cases are handled. I’m being asked to just “trust” this FBI? I only need cite the case above to tell you why I don’t trust the FBI, forget it’s many politically corrupt actions in the not too distant past.

      Let’s see what Trump supposedly actually did. And do keep in mind that this issue was decided by SCOTUS in 1988 – POTUS has plenary power over declassification. If he says it’s declassified while in office, it’s declassified. Apparently Trump had a ‘standing declassification order’ on all these items shipped to Mar a Lago – that would be game, set and match in Trump’s favor if he can prove that.

      I also do not believe that Trump’s people would allow him to be this sloppy. I know people who hate him want to think he’s a sloppy guy, in reality he’s fastidious about order. He’s also not going to give the DoJ strong reason to come after him. Perhaps I’ll be proved wrong. But as the facts stand now, I’m being asked to “trust” a bunch of people who justifiably lost my trust long ago. Just “Russia, Russia, Russia” alone is more than reason enough. That Dems and Leftists cannot see all this is simply willful blindness.

      1. Jared and Ivanka also did some of what Hillary did. I’ll believe that the “lock her up” folks are really concerned by Clinton’s acts when they also call for Jared and Ivanka to be locked up.

        1. Jared and Ivanka were private government advisors, Not government employees, not cabinet and they did not send classified information over the internet.

          1. They were both government employees, and the did some of what Clinton did.

            1. They were NOT Govt. Employees.. never on any Govt. Payroll in any way shape or form. Trump was a Govt. employee, although he returned his annual salary to the Govt. throughout his term. (unlike any of the other Presidents…)

              1. I did not claim that they were on the payroll. I said that they were both government employees, which is true. A simple internet search on jared kushner ivanka trump federal employees will pull up plenty of reporting about their formal federal employment. Here’s an example: https://www.npr.org/sections/thetwo-way/2017/03/29/521963433/ivanka-trump-to-be-an-official-white-house-employee-covered-by-ethics-rules

                Both were legally obliged to abide by the PRA. They did not.

                Trump donated his annual salary of $400K while charging the government more than $2.5 million during his presidency (to put up Secret Service at his properties, for golf carts when he went golfing on his properties, … — he visiting his properties on average every 3 days for all 4 years).

                1. You and NPR are misusing the word employee.

                  employee: one employed by another usually for wages or salary and in a position below the executive level

                2. The secret service was free to find other accommodations.
                  The only thing unusual was that it was Trump fascities being paid.
                  The SS has to pay for accomodations wherever they go,

                  I would note that Trump’s businesses also refunded all PROFITS from accomidating government employees or foreign dignitaries who were engaged in activities involving the federal government while he was president.

                  So Trump did not Profit off of SS protection – but his businesses had their costs covered.

                  1. Why force people to settle for sub-standard accommodations by banning the government from doing business with Trump hotels and resorts? Critics of all things Trump are speechless at Democrat Party public corruption and paranoid over Trump’s private sector business practices. Democrats are Control Freaks in only one direction.

                    1. The SS has the freedom to do its job as it sees fit – within congressional constraints.

                      The president can not tell the SS where to stay. Congress can – Through law.

                3. So Trump was away from the WH – with classified documents on an incredibly regular basis.
                  You are undermining your own claims.

                4. You constantly move forward with claims that are unsubstantiated and wrong. Then you are forced to move backward and provide excuses that later have to be revised and revised again. Nothing you say is solid because you rely on opinion and your desires, figuring that later when the truth is known, everyone’s focus will be on something else.

                  That is why nothing you say should be taken seriously.

                  1. “That is why nothing you say should be taken seriously.”


                    Their claims are utterly arbitrary, and should be summarily dismissed.

                    Here’s their MO: Assert an arbitrary claim, which is promptly refuted. They blithely drop that claim. Then move on to countless more arbitrary claims.

                    It’s whack-a-mole on steroids.

            2. Nope.
              Senior advisors are typically if not always political positions at the white house.
              They may or may not be employees. They often hold security clearances.
              They are not subject to many of the same laws that others in government are.
              But they also do not enjoy many of the benefits others in government do.

      2. “She ignored all FOIA requests” because such FOIA requests asked for her Dept of State emails while her email server used a different address. This is the same thing that Lois Lerner did. She had a gmail account and none of those emails were ever turned over in response to FOIA requests because that gmail account wasn’t mentioned.
        we know that Obama used a gmail account to communicate with HRC via her secret server because his gmail account popped up in response to a Judicial Watch FOIA request

        1. Obama was president – he was allowed to do this.
          Clinton was not.

          It is not illegal for a government employee to have a gmail account.
          It is a violation of federal records act to keep government records outside of government control – but there is no criminal penalty. This was addressed with clinton.

          It is absolutely a violation of the espionage act to remove classified information from a SCIF to an insecure location outside of government control. But that does not apply to any president. I have heard claims that it does not apply to the vice president either. But the fact that it does nto apply to the president is CONSTITUTIONAL.
          While any broad authority or protection of the vice president is by Executive order.

          Further former presidents and vice presidents are a specific catagory regarding classified documents.
          They have rescindable access to classified information of any kind at any level without a need to know.
          That is why all former presidents homes have a SCIF.

          News stories that Trump had nuclear secrets circulated – and proved to be fake.
          But even if they were true – that would not be a crime.
          If they were not already in his posession from when he was president, an ex-president would have to request hghly classified documents, and he could be told no. But the Classified document EO allows ex-presidents to have anything they want – with the existing president having the power to rescind that.

          Presidents, vice presidents and ex-presidents and vice presidents are among very very few people in the US that do not have to demonstrate a need to know to access classified documents.

          My point is that there are only 3 possible criminal claims against Trump.

          1). He was going to provide classified documents to someone not permitted to have them – especially a hostile foreign power.
          2). He was handling those documents recklessly – leaving highly classified documents in places they could easily be accessed by people not allowed to have them.
          3). While NOT president he stole them.

          Trump’s claim to have a standing order declassifying documents he took to the residence – while corroborated is a BONUS. It is not a necescity. The same conduct would not be criminal regardless. Even without a standing order – the president would automatically declassify a document by taking it anywhere insecure.

          Those claiming that it does not matter whether the documents we classified if they were harmful to the united states
          are INCORRECT, the determination of what is harmful to the US is a presidential power, and it is inherently subjective – which is why it is so hard to get agencies to declassify anything.

          All the stupid arguments being made by the left ignore the FACT that the very first line of Article II on the executive is that all executive power vests in the president.

          1. “It is not illegal for a government employee to have a gmail account”
            as long as it used for personal reasons only, but Lois Lerner and Obama to name two who had them used them to avoid compliance with federal records law and to avoid FOIA requess
            if they do use a private email account (gmail, yahoo, hotmail, proton, whatever) for government purposes they are required to forward such emails to their official government email accounts

      3. More accurately, Hillary publicly confessed to over 700 counts of felony Espionage (18 U.S. Code § 1924 – Unauthorized removal and retention of classified documents or material) when she acknowledged responsibility for the server the FBI found to contain over 100 classified documents, each of which was copied by at least 6 hostile foreign agents. At 10 years per charge, that could be up to 7,000 years in prison just for that act.

        Despite Comey’s song and dance rationalizing why he wasn’t going to charge her, the statute in question makes NO allowance for “intent.” The act is the deed; Comey admitted she was guilty and simply did not charge her.

        1. You make a point that is constantly missed by those on the left.

          18 US 793(f) and 18US793(e) Are the least offenses – they a statutory – they do not require intent.
          The standard is negligent or reckless.

          It is plausible that Clinton could have met an intent standard – Intent does not mean – intended to commit a crime
          It means intentionally committed an act.

          Clinton was reckless and negligent – she did not intentionally expose secrets to foreign powers.

          But she did not recklessly or negligently take classified documents – sh went to a great deal of trouble to do so – she acted intentionally.

    2. He wasn’t. POTUS’ power over State secrets is absolute, unlimited, and comes directly from the Constitution. As such, he is literally immune from being affected by any law, bureaucratic regulation, “Congressional oversight,” etc. He is uniquely immune to all of those, because his power comes directly from the Constitution while theirs is subordinate.

  16. OT: I remember discussing this case and the leftists lined up on one side with their usual baboonery and ATS at the lead. It went to court and as usual the baboonery was proven.

    Roy Moore awarded $8.2 million in PAC defamation case
    Onetime Senate candidate said his reputation was “severely damaged” during contentious election.


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