Donald Trump called it “siege,” a “raid,” a modern-day Watergate, complete with nefarious safecrackers. Florida Gov. Rick DeSantis darkly suggested the Biden administration — or “the Regime,” as he phrased it — had seconded law federal enforcement to target its political opponents and that this meant the United States was now a “Banana Republic.” Rep. Marjorie Taylor Greene, R-Ga., who has been quoted saying that she is not sure that al-Qaida carried out the 9/11 attacks and has flirted with the belief that the U.S. government is controlled by a Satanic pedophile cult, had a three-word response: “Defund the FBI!”
To put it mildly, MAGA-land erupted last night at the news that the former president’s Mar-a-Lago private club and mansion in Palm Beach, Fla., was searched for several hours on Monday by FBI agents. They evidently found what they were looking for: presidential materials that Trump removed from the White House, among them, according to early press reports, “many pages of classified documents.”
The National Archives prevailed upon Trump after he left office to hand over 15 boxes of presidential materials, which he was legally bound to do. He only did so a year later. After receiving the boxes, it discovered documents that contained "classified national security information." The DOJ began an investigation based on that finding.
No criminal charges have been filed against the former president, and the Department of Justice has remained tight-lipped about its ongoing investigation. “President Trump and his legal team have been cooperative with FBI and DOJ officials every step of the way,” said Christina Bobb, one of Trump’s lawyers.
Never in the history of the country have G-men come knocking at a former chief executive’s private residence looking for state secrets with possibly seismic bearing on U.S. national security. That was proof in itself to a host of GOP politicians and conservative pundits that this unprecedented search was just another “deep state” Democratic stitch-up to persecute Trump.
Worse, Trump's supporters have speculated, could this all be an elaborate attempt to keep their standard-bearer from running for president in 2024, something he has all but said he’s going to do?
Under Section 2071 of Title 18 of the U.S. Code, anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies or destroys” any documents obtained through public office has committed a crime. Among the penalties is disqualification “from holding any office under the United States.” (However, as former federal prosecutor Andrew McCarthy argues in National Review, the chances of Trump being barred from office are remote.)
Former FBI agents, including one who’s already investigated Trump, and ex-federal prosecutors told Yahoo News that obtaining a search warrant is a lengthy, difficult process, designed to be immune to political pressures.
The bureaucratic, box-ticking process by which the FBI obtains a warrant under ordinary circumstances is complicated enough, they maintain, without factoring in the enormity of sniffing around an ex-president’s digs.
“To obtain a search warrant, you need two things,” according to Barbara L. McQuade, the former U.S attorney for the Eastern District of Michigan. “You have to have conducted a sufficient investigation beforehand to demonstrate probable cause that a specific crime has been committed, and you need to show convincingly that evidence of that crime will be found at the location. These are not blind fishing expeditions.”
Political affiliation, as a matter of Department of Justice policy, cannot have any influence on that process. And even if it could, the present optics are a bit awkward. The current FBI director, Christopher Wray, a longtime Republican, was appointed by Trump; prior to that, in private practice, he defended former New Jersey Gov. Chris Christie, a member of Trump’s transition team, during the so-called “Bridgegate” scandal.
Given the sensitivity of this case, McQuade said, Wray will have almost certainly been briefed in detail and had to have approved the move to obtain a search warrant for Mar-a-Lago. Even then, there was never any guarantee it would be granted.
The warrant was issued by a federal magistrate judge in Florida.
“Even if you don’t believe politics isn’t involved in criminal investigations,” McQuade said, “magistrate judges tend to be especially neutral and detached, because they’re selected by U.S. district court judges — entire benches — and so you end up with people who are really quite moderate.”
Tracy Walder, a former FBI special agent and CIA operative, laughed when asked whether obtaining a search warrant in an investigation into an ordinary American was as simple as just dialing up a judge to railroad a personal enemy.
Walder noted that the search warrant for Mar-a-Lago was executed by the Counterintelligence and Export Control Section of the Department of Justice. “I was on that squad at the FBI,” Walder said. “I will never forget when I had to go and get a search warrant. My supervisor told me, ‘If you don't get it, don’t bother coming back to the office. Turn in your badge, you're done.’ You need an overabundance of information to obtain one to a point that — I'll be frank — is annoying. I could have a guy on the phone admitting to a crime, and that wouldn’t necessarily be sufficient.”
In Trump’s case, Walder said, the very fact that the FBI felt compelled to seek out a warrant underscores the gravity of what it has determined so far. Unlike wiretaps or surreptitious entries, search warrants become public information, especially when they target public figures; the inevitable fallout from targeting a public figure of this magnitude will have been considered extremely carefully at all levels of law enforcement involved.
White House press secretary Karine Jean-Pierre said Tuesday that the Biden administration had no foreknowledge of the search, which would be in keeping with standard practice, according to Walder. “I worked the largest Chinese [spy-ring] case in U.S. history,” she said. “It was under George W. Bush, who was never apprised of all the intricacies of what we were doing.”
Among the documents that Walder believes were stowed improperly at Mar-a-Lago were President's Daily Briefs (PDBs), the top-secret bulletins handed to the commander-in-chief every morning of his administration. These materials can often contain information that would compromise human sources or other mechanisms by which the U.S. intelligence community gathers its intelligence. Trump famously revealed highly classified intelligence related to an ISIS terror plot to Russian Foreign Minister Sergei Lavrov and former Russian Ambassador Sergei Kislyak while they met with him in the Oval Office in 2017.
“I’ll bet you a beer PDBs were at Mar-a-Lago,” Peter Strzok, the former deputy assistant director of the FBI’s Counterintelligence Division, told Yahoo News.
Strzok oversaw Crossfire Hurricane, the FBI’s codename for its investigation into Russian interference in the 2016 presidential election and into whether members of the Trump campaign knowingly or unknowingly coordinated with Russian state actors. He also ran the investigation into Hillary Clinton’s use of a personal email server to handle classified information when she was secretary of state.
Strzok is no stranger to accusations that the FBI has it in for Trump. Republicans spent years arguing that Crossfire Hurricane was terminally compromised because Strzok had texted negative comments about the then-candidate to an FBI colleague with whom he was romantically involved. However, U.S. Inspector General Michael Horowitz found no evidence that “political bias or improper motivation influenced the decisions” to open any of the cases Strzok was involved in.
“Presidents don't have security clearances,” Strzok said. “They're given access to classified information when they’re elected, by virtue of being the chief executive. The day they leave on Inauguration Day, they no longer have access.”
Traditionally, their successors grant them clearance as needed for briefings on national security, but Biden denied Trump that privilege, citing his “erratic behavior” around the Jan. 6, 2021, insurrection at the Capitol. Ongoing congressional hearings into that event, in fact, first prompted the National Archives to request the missing presidential materials. “What are the contents of the documents sought by the FBI?” McQuade asked. “Do they in any way incriminate Trump with respect to Jan. 6?”
Federal investigators, Strzok added, could have found all the probable cause they needed for a search warrant while at Mar-a-Lago at Trump’s invitation.
CNN reported that on June 3, Jay Bratt, the head of the Counterintelligence and Export Control section at the Justice Department, traveled to the property with three colleagues. They met with two of Trump’s attorneys there, and briefly with Trump himself. The attorneys allowed the investigators access to a basement room where the presidential documents were being kept. Some had Top Secret markings, according to one source interviewed by CNN.
Five days later, at the request of the investigators, Trump’s aides installed a padlock to the door of the storage room.
“They probably saw stuff that Trump should absolutely not be in possession of,” Strzok said. “Subpoenaing it won’t work, because of the chain of custody. And Trump isn’t acting in good faith to just hand the stuff over. The only other option left is to get a warrant.”