The Mar-a-Lago search warrant has been unsealed. Turns out it is what I told you it was going to be: an open-ended license to grab any item that might be relevant to the Justice Department’s Capitol-riot investigation.
To be sure, the government is very interested in reclaiming every bit of classified information — or, at least, information that it claims is classified — in Donald Trump’s possession at his Mar-a-Lago estate. The warrant, however, is not limited to evidence of classified-information crimes, not even close.
According to the warrant’s Attachment B, which describes the “property to be seized,” the Justice Department sought (and received) judicial authority to seize evidence of three crimes related to the mishandling of government records: the Espionage Act (Section 793); the concealment, removal, or mutilation of government records (Section 2071); and the obstruction of investigations by altering or destroying evidence (Section 1519).
Already, we can see that the investigation is far broader than just the mishandling of classified information. While the Espionage Act offense relates to defense secrets, the other two offenses are not limited to classified information: Section 2071 relates to the removal or concealment of any government record, not just classified intelligence; and Section 1519 applies to any item at all — it need not be a government record, for the point is to protect government investigations, not government property.
From there, Attachment B seems to prioritize classified-information crimes, but less so than appears at first blush. Subsection (a) authorizes agents to seize documents marked classified, but the license is much broader — the warrant allows seizure of not only containers in which classified documents are found (along with their other contents, even if they are not classified), but also of other containers found proximate to those first containers, again, regardless of whether the contents are classified. So, for example, if agents found one low-level classified document in a container that was stored next to ten other containers of nonclassified documents, the warrant permitted seizure of all of the nonclassified containers and their nonclassified contents.
Then there’s subsection (b), which permits the seizure of communications, in any form, regarding classified information. Note: The communications do not have to be classified to be seized; they can be nonclassified and about anything as long as they have some connection to classified information.
Where things get really, shall we say, elastic is subsection (c). It permits the seizure of “any government and/or Presidential Records created” throughout the four years of Trump’s presidency.
Plainly, this has nothing to do with classified information. It is mainly designed to use the criminal law — the search warrant, an intrusive tactic for retrieving evidence of crimes — to enforce the Presidential Records Act, which is not a criminal statute.
Can DOJ get away with this? Perhaps. Section 2071 is very broad, targeting anyone who “removes” or “destroys” “any” government record. If you are wondering how this did not apply to Hillary Clinton’s removal of tens of thousands of government-related emails and willful destruction of tens of thousands of others, you are not alone. In any event, Rule 41 of the Federal Rules of Criminal Procedure permits the seizure not only of evidence of a crime but also of “items illegally possessed.” It seems clear from the context that this phrase is meant to apply to items derived from criminal activity. Literally, though, it is clearly broader than that.
Since Congress did not choose to attach criminal penalties to violations of the Presidential Records Act, what we see here amounts to the Justice Department fashioning a new crime for Donald Trump. This is not my idea of the even-handed enforcement of the law — no partisan discrimination — that Attorney General Merrick Garland insisted he pursues in his remarks on Thursday. But there will be plenty of time to discuss that.
My point for present purposes is that subsection (c) authorized the FBI agents to seize every scrap of paper from the Trump administration. There is no limitation to classified information. There is no limitation to the Presidential Records Act. There is no limitation to the unmentioned Capitol riot. Indeed, there is no requirement that any scrap of paper be connected in any way to any crime whatsoever. No restriction at all. If it was arguably a government record of any kind generated during the Trump presidency, the judge said the bureau could take it.
The FBI and Justice Department will be doing what I told you they’d be doing: Poring over everything and anything from Trump’s presidency to try to make a January 6 case. What was executed at Monday’s historically unprecedented search of a former American president’s home was not a traditional search warrant to find evidence of specific crimes. It was certainly not a search warrant solely to retrieve vital national-defense secrets. This search warrant was a license for a fishing expedition. In an ocean.
The Justice Department is hoping the Trump trove will yield proof that he did not believe his stop-the-steal rhetoric and was willfully trying to steal by fraud and political pressure an election he knew he lost. I believe that is what the Justice Department thinks it needs to charge the former president with corruptly obstructing Congress’s count of state-certified electoral votes, and with conspiring to defraud the government.
Whether they will find the needles in the haystack remains to be seen. But they made sure to get control of the haystack.
Source: Andrew C. McCarthy, https://www.nationalreview.com/2022/08/trump-warrant-furthers-justice-departments-january-6-investigation/