Politics, Law, and the Mar-a-Lago Search
That's some catch, that Catch-22.
Harvard law professor Jack Goldsmith, a former senior Justice official under the George W. Bush administration, offers his tentative “Thoughts on the Mar-a-Lago Search.” While he says we simply don’t know enough to truly evaluate the situation, he’s right that the politics here matter much more than the law. But his analysis also highlights the Catch-22 that is the Trump administration: because Trump was an unprecedented President in so many ways, pretty much every reaction to him will also be unprecedented—and thus cited as evidence of unfair treatment.
Several sensible commentators—including George Will, Damon Linker, and David Brooks—think Attorney General Garland made a mistake, perhaps a disastrous one, in executing the search warrant at Mar-a-Lago. (They made these claims before the federal magistrate unsealed the warrant and the inventory of seized materials.) They worry that the search will, in Will’s sedate words, harm “social comity” and “domestic tranquility.”
They are right in this sense: Trump supporters would have viewed any criminal legal process directed at Trump from the Biden Justice Department as, in Linker’s words, “an illegitimate act undertaken by an alien, tyrannical ‘Regime’ resembling a Third World dictatorship.” Justifiably or not, this reaction—and the further diminution in trust in the Justice Department and FBI by a large chunk of the country—was a directly foreseeable consequence of Garland’s decision.
Commenters on Twitter are unsurprisingly savaging him for declaring Will and Brooks “sensible.” But if rabidly anti-Trump thinkers who have left the GOP in disgust are worried about the search, it’s worth paying attention.
Which is not to say that Garland made the wrong decision. On that question it is far too early to tell. Will is right to suggest that Garland’s decision, even if scrupulously non-political in intent, is “inherently political” and should be judged by how well he “adjust[s] tidy principles to untidy realities” and “balance[s] competing objectives.” And the bar should be very high before the Justice Department in an administration run by [Biden]’s former and probably future political opponent, uses unprecedented criminal process against Trump—especially given our cleaved politics, upcoming elections, and the well-documentedmistakes and illegalities that the Justice Department and FBI committed in pursuing Trump in the past.
Goldsmith is right here. While it’s exceedingly frustrating that demanding the former President follow the law is seen as a politicization of justice, the act is in fact inherently political. I simply assume that Garland was painfully aware of that and that his decision, therefore, cleared that very high bar. Goldsmith is not making that assumption but rather waiting to evaluate the results.
And yet Trump has for all his adult life, and especially during his presidency and post-presidency, shown contempt for law. The FBI’s belief that Trump acted illegally in bringing scores of sensitive documents to Florida, or in not returning them upon request, is very far from shocking. It also appears right now—and this too would not be surprising—that Trump and his advisors did not fully cooperate with the National Archives’ and the Justice Department’s efforts to secure and retrieve this information. There obviously must be a point where information is so sensitive, and Trump’s disregard for law so extreme, to justify legal process against Trump, even in the current milieu. Otherwise the law is entirely hostage to a former president’s (and his supporters’) self-serving veto—something no legal system can tolerate.
That’s where I was the moment I learned of the search. But, again, Goldsmith is putting himself in the position of a senior DOJ official, not a concerned citizen.
Garland will be judged over the coming days and months and years on whether that point had been reached—whether Trump’s indifference to law, and the failures of negotiations with Trump to right his wrongs, and the stakes of the information Trump possessed, justified the Mar-a-Lago search.
Lawfare posted a good account of the warrant, the documents seized (which included ones with classified markings), and this summary of what it all implies:
The FBI has clearly developed significant evidence of criminal activity at Mar-a-Lago related to the handling of classified material, and government property more generally. There is evidence of document tampering. And there is evidence, at a minimum, of willful retention of material that should not have been at the resort. Precisely who is the subject of these investigations and how strong the evidence is at this stage remains unclear. But we can infer from the granting of the warrant that a magistrate judge, at least, believes it meets the probable cause standard governing all federal searches and seizures. We can further infer from Garland’s apparent eagerness to have this material made public that the Justice Department is confident of its position, not just in court but in public opinion.
Whether Garland made the right call will depend on how much this description holds up, and how serious the wrongdoing appears to the public independent of legal technicalities.
Ultimately, I think that’s right. Again, that’s unfair: the standard should be whether Trump followed the law, both as President and after. But mere misdemeanors won’t be enough in the eyes of nonpartisans.
The first factor is the nature of the classified information that Trump had at Mar-a-Lago. Not all of the legal predicates in the warrant turn on the documents at Mar-a-Lago being classified. But the prudence of Garland’s judgment will turn to a large degree on the true sensitivity of the information there.
Former President Obama once said, in the context of the Hillary Clinton email server investigation:
What I also know, because I handle a lot of classified information, is that … there’s classified, and then there’s classified. There’s stuff that is really top-secret, top-secret, and there’s stuff that is being presented to the president or the secretary of state, that you might not want on the transom, or going out over the wire, but is basically stuff that you could get in open-source.
Obama was criticized for this remark because he commented publicly on the investigation, and because he revealed the skepticism with which top officials view (and often disregard) the U.S. government’s overclassification of information.
And yet there is truth in what Obama says. The government massively overclassifies, and even many highly classified secrets are “stuff that you could get in open-source.” It will matter a lot, in assessing Garland’s decisions, whether the information Trump had was closer to “really top-secret, top-secret” or to information available in public.
Again, I think this is right. And yet it’s doubly frustrating. Not only because we should demand that Presidents be scrupulous in their handling of state secrets but because Trump likely wouldn’t have been elected absent much less egregious handling of state secrets by Hillary Clinton when she was Secretary of State. And I say that as a reluctant Clinton voter who nonetheless believed she was malfeasant.
There are many reports that “[c]lassified documents relating to nuclear weapons were among the items FBI agents sought.” Trump’s unsurprising response: “Nuclear weapons is a hoax, just like Russia, Russia, Russia was a hoax, two Impeachments were a hoax, the Mueller investigation was a hoax, and much more.” If indeed the FBI was searching for “documents related to nuclear weapons,” it will matter a lot whether the documents concerned, for example, Trump’s tweet-claim that his button was bigger than Kim Jong-un’s, or rather described nuclear weapons design or foreign nuclear capabilities—i.e. secrets that, if revealed, would truly harm national security.
What’s frustrating here is that we may never know. That is if Trump had “secrets that, if revealed, would truly harm national security” in his possession, DOJ isn’t going to release them just to vindicate their search.
The second factor will concern what Trump and his associates did with the information. The warrant referenced 18 U.S.C. § 1519, a criminal statute that prohibits the destruction, alteration or falsification of records in federal investigations, and 18 U.S.C. § 2071, a criminal statute barring the concealment, removal, or mutilation of government records. It will matter a lot whether Trump and his team, for example, merely removed classified markings on documents that Trump previously declassified (more on this below), or whether they did something more nefarious, such as altering or destroying documents to conceal illegal possession. (There are of course many possibilities in between.)
Again, frustrating. We ought to expect the President to follow the goddamn law. But, yes, a lot of people who aren’t highly political will roll their eyes at merely “technical” violations.
It will also matter, relatedly, what we learn about the process preceding the search. Had Trump and his team been cooperating with the government to return all inappropriately retained documents, to the point where the two sides had reached a good-faith disagreement? Or had they been prevaricating and stonewalling in bad faith?
Early reports suggest something closer to the latter, but many relevant details remain unclear. The ultimate answer to this question will (among other things) inform how to assess the invocation of the third statute referenced in the warrant, 18 U.S.C. § 793, which criminalizes the failure to deliver on demand documents and other materials “relating to the national defense” that “could be used to the injury of the United States or to the advantage of any foreign nation.” If Garland is invoking this famously vague criminal provision from the Espionage Act over a good faith dispute about compliance with the Presidential Records Act, that will be viewed as overkill. If he did so as a last-ditch effort to secure vital national security secrets, that is another matter altogether.
Again, I think that’s right. Garland isn’t an amateur, though. I don’t think he’s going after love letters from Kim Jong Un.
After a longish discussion of whether Trump had declassified the documents in question and the nature of the President’s powers to do that that very much echoes previous discussions here, Goldsmith continues:
Several other factors will inform how Garland’s actions here are judged. It obviously matters if Garland indicts anyone following this search. A prosecution—either of Trump or his associates—would raise the stakes significantly higher. Garland could have executed the warrant in good faith as a last-ditch effort to secure sensitive documents and yet decide, as a matter of prosecutorial discretion, that any discovered criminal activity should not be prosecuted for prudential reasons—including national harmony, worries about revealing classified information at trial, or doubts about a successful prosecution.
Absolutely. Goldsmith doesn’t offer his conjecture on how this would be received but I suspect it would mirror the DOJ decision, which I thought correct if frustrating at the time, not to charge Clinton: Democrats will be outraged while Republicans will see it as proof that Trump did absolutely nothing wrong.
The final factor concerns where the Mar-a-Lago action fits into the larger picture of Justice Department actions against Trump, including, for example, any criminal action related to January 6. One (unlikely) possibility is that the Florida search was an isolated action against Trump that does not result in a prosecution, that is not followed by other department actions against him, and that quickly diminishes in significance. At the other extreme, and more likely, is that the Mar-a-Lago search will be followed by a multi-pronged criminal investigation of Trump, his associates, and perhaps some congressional republicans related to January 6 (or some other matter).
There are too many imponderables here to assess this issue at this point. But in general, and even assuming very bad acts by Team Trump, the more unprecedented investigatory and prosecutorial steps that one administration takes in response to the acts of a prior administration, the worse. If there is a lot more to come, and it seems that there is, that will put more pressure on the question whether Garland acted prudently out of practical necessity in executing the Mar-a-Lago warrant.
All of Garland’s decisions will be judged, as former FBI Director James Comey once wrote, not from the perspective of “urgency and exigency” under which he acted, but rather from the “perfect, and brutally unfair, vision of hindsight.” Hopefully Garland anticipated this hindsight judgment and acted with a scrupulous attention to process, and with a fair-minded, non-overreactive assessment of the facts, and of what needed to be done, all things considered.
Goldsmith withholds judgment on that until we know more. I simply assume it knowing what I know about Garland’s reputation.
But, again, this all illustrates the Catch-22. Not only is anything the Biden administration did here—including simply allowing Trump to get away with keeping classified documents in violation of the law—going to be viewed through partisan political lenses but the very fact that it’s damned near unimaginable any modern President would have acted this way means there’s no precedent for any of this.