Raiding Mar-A-Lago

I didn’t have time yesterday but I did want to remark on the FBI raid on President Trump’s residence at Mar-A-Lago. It pretty clearly is a “where you sit depends on where you stand” event. For some it’s proof positive that the United States has become a “banana republic”. For others it’s proof positive that it hasn’t.

My own view is that I think that clearing a former president’s private residence and office of classified materials should be so routine that it isn’t remarked on. I don’t buy into the notion that politicians can simply be trusted. I strongly suspect that no president of the digital age and possibly none before has been perfect in his handling of classified materials. With so many things being routinely classified these days it’s probably harder than ever.

It does highlight what I have said before about President Trump—that he was too ignorant of the federal government and the law and too arrogant to think that the law applied to him.

I also think there’s a risk of rather that it being a matter of “no president is above the law” to one of “no Republican is above the law”.

Finally, I think that those who see the outcome of such a raid being that President Trump is rendered ineligible to run again will be bitterly disappointed. It is already settled law that Congress does not have the authority to alter the requirements for the presidency by statute.

31 comments… add one
  • Grey Shambler Link

    Once again, It fits the pattern and fails the smell test.
    I’ll wager sensitive documents will be found whose contents must be redacted to “preserve our democracy “, or some such.
    What won’t be found will be three or four editions of Trump’s autobiographies.
    They’ve managed once again to shore up the support of his base.

  • bob sykes Link

    Actually, SCOTUS ruled for Adam Clayton Powell in Powell v. McCormack, 395 U.S. 486 (1969). The Democrat-controlled House refused to seat Powell, because he was too corrupt even for them. But SCOTUS ruled he met all the Constitutional requirements, and seated him anyway.

    After the government assassinations of JFK, RFK, and MLK, after the terror reign of J. Edgar Hoover, after the murders at Ruby Ridge and Waco, after all the FBI lab frauds, after Russia Gate, after the January 6 scam and Stalinist show trial…

    is anyone really surprised that the FBI would stage a raid like this? The only surprise is that the Feebies didn’t gun down Melania and The Donald in their sleep.

    Eventually the Feebs or CIA or Pentagon or Secret Service will kill Trump and dig up some Oswald- or Sirhan- or Ray-type loser to pin it on.

    The Praetorians are running the show now.

  • Jan Link

    I’m honestly disappointed in Dave’s remarks regarding the Mar-A-Lago FBI unannounced drop-by.

    There have been allegations regarding Bush and Obama’s papers being boxed up, many destroyed. Obama, in particular hauled his documents off, storing them in a warehouse, with constraints they could not be looked at for a dozen years. In contrast, Trump’s collection of boxed documents has been numbered as 15, stored in a basement at Mar-A-Lago, and in June of this year the FBI already looked through these boxes without any interference.

    The surprise “raid” on Monday comprised 30 agents, armed with machine guns and a warrant specifying a search for classified documents, nothing else. Instead, these agents searched every room, even personal closets of Melanie Trump, taking stuff without giving a list of what was taken, did not leave a copy of the warrant with Trump’s attorneys, who they didn’t allow to watch the search – for almost 10 hours! Is it no wonder such a spectacle – an historic first in this country – was viewed as 3rd world tactics!!! Even El Salvador’s president, Nayib Bukele, asked “What would the U.S. say if I did that?”

    Even the magistrate signing this unusual warrant was an attorney for the infamous Epstein, and reported as giving thousands of dollars to the Obama campaign. None of this makes any sense to me (and many others) except to keep Trump on the sidelines of running for the 2024 presidency in any way or at any cost possible.

    Essentially, this raid was no where near normal protocols in how a former president should be approached or treated in order to question the documents he took upon leaving the WH.

  • Jan Link

    …..furthermore, all persuasions of right/left orthodoxy are agreeing this raid was unnecessary and probably illegal. It’s people in the National Archives who are supposed to work with the president and his attorneys to determine the status of these documents, not armed representatives of what is looking more and more like a police state.

    How can anyone, no matter their party affiliation, rationalize let alone support last Monday’s travesty?

  • Jan Link

    Here is Israel’s assessment of Monday’s raid:

    https://www.israelnationalnews.com/news/357937

    ”Mark the date in your memory; August 8, 2022. It will be recorded in history as the “Kristallnacht of American Democracy.” Basically the day similar in nature, to the German Nazis’ opening salvo of fascism, the beginning of the extermination of Jews and democracy, on November 9, 1938.

    Yesterday was a sad day for all of patriotic Americans, as our former independent federal law enforcement agencies, the FBI and the Justice Department, now officially both under the singular control of the Democrat Party, raided the home of former President Trump and confiscated all of his personal data, without going through the legal processes of obtaining court orders to do so.”

  • CuriousOnlooker Link

    “It is already settled law that Congress does not have the authority to alter the requirements for the presidency by statute”

    Actually Congress does have the power via the electoral count act. On Jan 6th, 2025, Congress can choose to object to any electoral votes given to Trump “as not regularly given”, by the reason that Trump was not an eligible candidate (any reason could be given, like he violated the 14th amendment).

    That’s why I am very doubtful for all the sound and fury, reform of the electoral count act will do anything to limit Congress’s safeguard power here.

  • CuriousOnlooker:

    The just tells us there will be court challenges. No doubt.

  • Andy Link

    I think it’s too early to say anything definitive. I just hope the FBI and Justice Department have done the work to justify this action and that it isn’t a repeat of the Carter Page FISA debacle.

    Matt Taibbi, probably the best polemicist currently writing today, lays out the similar narratives between then and now in the media:

    https://taibbi.substack.com/p/welcome-to-the-third-world

    Since it’s paywalled, here’s a taste:

    Last night, the usual network suspects (CNN, MSNBC, ABC, CBS, etc.) were essentially unwatchable. Nobody asked crucial questions. Reporters across the industry spent the night doing what I did, calling every name in their phone directories in an effort to find out what was going on. Following the regular press I soon realized they were getting the same answers I was: the raid was over a records issue, likely (though not definitely) unconnected to January 6th, perhaps involving a missed deadline.

    Some suggested the raid was linked to Trump’s reported habit of tearing up presidential documents, and others wondered if there was a tie to a report yesterday in Axios by Times star writer Maggie Haberman, that ripped documents had been discovered clogging White House toilets after Trump’s departure.

    The instant reporters got hold of that limited information (and the top outlets seemed sure enough that “Focus Said to Be on White House Files” was in the Times lead headline), they should have been asking: is there anything weird about dozens of FBI agents executing an Entebbe-style raid of the home of a former president over a records issue?

    Do we recall anything so dramatic in cases involving people like Bill Clinton’s former National Security Adviser Sandy Berger (who was stuffing classified documents down his pants)? How about when Dick Cheney claimed an exemption to classification procedures and one of his aides, Leandro Aragoncillo, admitted in court to stealing classified info to pass on to coup plotters in the Philippines? For Christ’s sake, one of the core principles of the Trump-era media is that the press erred in over-covering Hillary Clinton’s mishandling of classified information. Do these news outlets think audiences won’t notice the difference in attitude?

  • steve Link

    ““no Republican is above the law”.”

    Hmm. Which party has the presidents who never have to testify when charges are presented and which does not? Oh? Clinton had a special prosecutor and that is different? They why dont you get that for a GOP POTUS? Rules changed? How convenient.

    “Do we recall anything so dramatic in cases involving people like Bill Clinton’s former National Security Adviser Sandy Berger (who was stuffing classified documents down his pants)?”

    Why would we? He couldn’t weasel out of questioning. Charges could be and were brought against him. Of course it was while Bush was POTUS so it was all probably political.

    Steve

  • steve Link

    “Yesterday was a sad day for all of patriotic Americans, as our former independent federal law enforcement agencies, the FBI and the Justice Department,”

    Need to elect better presidents who will appoint better leaders of the FBI.

    Steve

  • Need to elect better presidents who will appoint better leaders of the FBI.

    I agree with both clauses of that sentence but I’m afraid it’s not enough. Like many federal agencies, to some degree it’s on auto-pilot and the permanent bureaucracy runs the show. That’s why I keep saying that we need civil service reform.

    Said another way I think you’re overestimating what titular heads of agencies can actually do.

  • Andy Link

    The case with Sandy Berger is different than other examples. He went into and stole stuff from National Archives. Trump, Clinton, and many others simply forgot or neglected (intentionally or unintentionally) to turn stuff over.

    Whether this was really about not turning over records or if it was something else is yet to be determined, which is why I think it’s way too early to make any conclusions. And I think the onus is on the DOJ to make the case – at some point – for this action as opposed to others they might have taken. Time will tell, just as it did for Clinton’s emails, the Steele Dossier, and the Carter Page FISA warrant.

  • An additional complication, Andy, is that presidents have plenary authority to declassify. Trump’s obvious defense is that he declassified the documents while he was president and before he took them. That they’re not marked “Declassified” proves nothing.

  • Andy Link

    Dave,

    Yes, I think any attempt to get Trump for mishandling classified information is fanciful at best.

  • Zachriel Link

    Jan: Obama, in particular hauled his documents off, storing them in a warehouse, with constraints they could not be looked at for a dozen years. In contrast, Trump’s collection of boxed documents has been numbered as 15

    You are confusing private papers with government documents. The president has the right to his own papers, but not a right to government documents, and, in Trump’s case, classified materials.

    Jan: taking stuff without giving a list of what was taken, did not leave a copy of the warrant with Trump’s attorneys

    That is incorrect. Trump’s attorneys have indicated they have the warrant, but haven’t released it.

    Jan: Even the magistrate signing this unusual warrant was an attorney for the infamous Epstein

    Also incorrect. The judge represented employees of Epstein, not Epstein.

    Jan: Essentially, this raid was no where near normal protocols in how a former president should be approached or treated in order to question the documents he took upon leaving the WH.

    It’s a two-tiered justice system. Rich, well-connected white men have it much easier. But, in theory, the president is not above the law.

    Jan (quoting): “raided the home of former President Trump and confiscated all of his personal data, without going through the legal processes of obtaining court orders to do so.

    Huh? They had a court order.

    Dave Schuler: An additional complication, Andy, is that presidents have plenary authority to declassify. Trump’s obvious defense is that he declassified the documents while he was president and before he took them.

    There has to be a record of a presidential order. Trump muttering under his breath while on the toilet (or post hoc remembering after he left office that he had done so) is not a presidential order.

    Think about. If Trump could retroactively deem something declassified, claiming he had done so while president but without a record having been made, it means *nothing* is classified. You couldn’t charge someone who exchanged military secrets for dirty lucre to America’s enemies without having Trump called as a witness. Everything would be subject to FOIA requests, and Trump would have to personally rule on that too. Even if he was dead and gone.

    Andy: I think any attempt to get Trump for mishandling classified information is fanciful at best.

    They would have to prove intent. Mere negligence or abject stupidity is not sufficient for a criminal charge.

    Meanwhile, Trump takes the Fifth.

  • Andy Link

    “There has to be a record of a presidential order. Trump muttering under his breath while on the toilet (or post hoc remembering after he left office that he had done so) is not a presidential order.”

    That’s simply not true. The President can go on TV and tell the world any classified information he wants to without any order and without legal repercussion. He can talk to a foreign leader privately and tell them any classified information if he wants. No order is necessary. That is what plenary power grants, and it is unique to the office.

    Now Trump is no longer President, so Biden gets to determine what is classified and what isn’t. Trump might say he declassified something, but that was then, and this is now. If Biden says it’s classified, then it’s classified. Retroactive classification is a thing, and just because Trump may have declassified them doesn’t mean that Biden can’t reclassify them. And Trump, the former President, has no right to retain classified documents.

    IMO (and IANAL), the Biden administration has the authority to determine if the documents are classified or not, and if they are, the US government can seize them from Trump and keep them. But attempting to prove that Trump is criminally liable is about impossible, even if this wasn’t a massive legal gray area.

    So that’s how I think this will play out. There won’t be a prosecutable case on Trump for taking classified material, but the government won’t have to return any classified material they’ve taken.

  • So that’s how I think this will play out. There won’t be a prosecutable case on Trump for taking classified material, but the government won’t have to return any classified material they’ve taken.

    I think that’s about right. It’s as I’ve been saying. Trying to pin anything on Trump in this matter is risky; even trying is risky. If Trump is pursued for mishandling classified information which he claims to have declassified, will any future Democratic president escape the same charges should a Republican become president?

  • Zachriel Link

    Andy: He can talk to a foreign leader privately and tell them any classified information if he wants. No order is necessary.

    Sharing intelligence isn’t declassification. Even public information can be classified. For instance, the existence of drone strikes in foreign countries were classified — even though they had been reported in the New York Times. (For what it’s worth, that’s so the government could maintain deniability.)

    The law against disclosure requires an executive determination that the information requires protection in the interests of national security. (Even then, prosecution requires a showing of intent, and that classification really is in the interests of national security.) The president has ultimate authority to make the classification determination, but that still requires a specific act by the president.

    Irresponsible Trump could take classified information home with him while president, but the moment he no longer president, that material has to be returned to the government, because it is classified and because it is government property.

    Notably, you didn’t respond to the cases. If the president can mumble to himself that something is declassified, then what is classified? Under 18 U.S. Code § 1924, classification requires an executive order. It can be verbal, but it has to be given explicitly.

  • Zachriel Link

    Dave Schuler: Trying to pin anything on Trump in this matter is risky; even trying is risky.

    It’s very unlikely Trump will be prosecuted for mishandling classified information due to the problem of proving intent. However, claiming the information was declassified without an explicit presidential order would probably not stand legal scrutiny. It would mean nothing is classified because there would be no way to know what is classified and what is not. Even the most egregious cases couldn’t be prosecuted.

  • Drew Link

    Zach is, as usual, throwing sand in people’s eyes. Disputes over official and private documents, and even what those definitions are, is fairly routine. No one gets gets raided. A subpoena, three guys and a quiet knock on the door would have done.

    BTW – there is no question about HRC and classified documents. Was she raided? Didn’t think so.

    Did the FBI falsify or ignore obviously bogus evidence to get Carter Page’s FISA warrants. Why yes, yes they did. Several times.

  • Zachriel Link

    Drew: there is no question about HRC and classified documents. Was she raided? Didn’t think so.

    Clinton responded substantively to grand jury and congressional subpoenas and testified under oath.

    We don’t know what the Trump warrant was based on, but reports are that someone with knowledge directed the FBI to government documents Trump was withholding had “neglected” to return to the government.

    Meanwhile, in a separate case, Trump has pleaded the Fifth.

  • Zachriel Link

    The search warrant required a judge to determine probable cause that a crime had been committed (though not necessarily by Trump), probable cause that probative evidence will be found in the location, and that the information relied upon concerning the location of the evidence is recent. The recency clause implies inside knowledge.

  • Andy Link

    “Notably, you didn’t respond to the cases. If the president can mumble to himself that something is declassified, then what is classified? Under 18 U.S. Code § 1924, classification requires an executive order. It can be verbal, but it has to be given explicitly.”

    You are missing the point. The power and authority to classify and declassify rests solely with the President. Declassifying something does NOT require an Executive Order.

    “The president has ultimate authority to make the classification determination, but that still requires a specific act by the president.”

    Says who? Such determinations are entirely in the President’s purview. There is no federal law that obligates the President to follow any specific procedure when making classification determinations.

    “Sharing intelligence isn’t declassification. Even public information can be classified. For instance, the existence of drone strikes in foreign countries were classified ”

    Again, you are missing the point. The President can share any information he wishes to, with anyone, for whatever reasons the President wants to, without criminal penalty. He can do that and still determine the information is classified – or not. For everyone else in the Executive Branch, that is not the case. There are no criminal penalties for the President – again, that is what plenary power provides.

  • Zachriel Link

    Andy: The power and authority to classify and declassify rests solely with the President.

    That’s right!

    Andy: Declassifying something does NOT require an Executive Order.

    That’s wrong! It can be verbal, but it has to be an explicit order, not something muttered to himself in private.

    Andy: There is no federal law that obligates the President to follow any specific procedure when making classification determinations.

    50 U.S.C. § 3161 requires the president to establish uniform standards for classification. The president establishes these standards by executive order, and he can change them at any time, but that, again, requires an explicit order from the president.

    Under 18 U.S. Code § 1924, classification requires an executive order. It can be verbal, but it has to be given explicitly.

    Andy: The President can share any information he wishes to, with anyone, for whatever reasons the President wants to, without criminal penalty.

    That’s right! But just because the president shares intelligence with the British (or the Russians, for that matter), it doesn’t declassify the information. That requires specific action on the president’s part.

    More particularly, if the president can declassify by muttering to himself and not telling anybody, then nobody can be held to account for disclosing classified information, because no one can know in advance what is classified and what is not. And everything would be subject to FOIA disclosure.

    Andy: There are no criminal penalties for the President – again, that is what plenary power provides.

    Trump isn’t president. He just some guy in Florida.

  • Andy Link

    Zachriel,

    I get that this is confusing, but you are making a lot of wrong assumptions.

    First, the “Executive Order” mentioned in 18 U.S. Code § 1924 relates to the standing EO’s that cover the management of classified information in the Executive branch. The notion that the President has to issue a new EO to classify or declassify something is wrong and absurd or that the President could theoretically be prosecuted for not following some classification or declassification process is also wrong and absurd. It seems you’re suggesting that the President could be criminally prosecuted for not following the guidance in his Executive Order in an area where he has plenary power.

    If that’s the case, then the President could be prosecuted for not signing an NDA upon leaving, which is required by the relevant EO’s.

    In reality, the vast majority of classification and declassification decisions are delegated to specific people in the Executive Branch and are not exercised directly by the President. The people are called OCA’s – Original Classification Authorities. OCAs have the authority and discretion to determine what should and shouldn’t be classified, including what can be downgraded or declassified or be released to foreign governments. And guess what? There is no requirement for a new EO whenever they exercise that discretion. That authority flows from those standing EOs and, ultimately, the President.

    So your entire theory about how everything must be an explicit order is simply wrong.

  • Zachriel Link

    Andy: First, the “Executive Order” mentioned in 18 U.S. Code § 1924 relates to the standing EO’s that cover the management of classified information in the Executive branch.

    That’s right. You had said, “There is no federal law that obligates the President to follow any specific procedure when making classification determinations.” In fact, statute requires the president to set up a procedure which establishes uniform standards.

    Andy: The notion that the President has to issue a new EO to classify or declassify something is wrong and absurd or that the President could theoretically be prosecuted for not following some classification or declassification process is also wrong and absurd.

    A sitting president can decide to classify or not classify, or share or not share information. However, classification is an administrative act, and requires, well, action.

    Andy: That authority flows from those standing EOs and, ultimately, the President.

    That’s right!

    You simply side-stepped the problem with your position. The president can legally classify or not classify, share or not share. However, classifying information requires action on the part of the president. If the president can classify or declassify by simply thinking it (or by remembering after the fact that he had thought it at the time), then nobody can be held to account for disclosing classified information, because no one can know in advance what is classified and what is not. And everything would be subject to FOIA disclosure. In fact, the law requires a uniform procedure.

  • Zachriel Link

    (You might be hung up on “executive order,” by which we mean an explicit order by the president or delegated authority, not necessarily a formal Executive Order or even a Presidential Memorandum.)

  • Andy Link

    “If the president can classify or declassify by simply thinking it (or by remembering after the fact that he had thought it at the time), then nobody can be held to account for disclosing classified information, because no one can know in advance what is classified and what is not.”

    That argument doesn’t make any sense because only the President has that power. The idea that “nobody” could be held accountable is clearly false. The relevant EO’s and laws regarding the handling of classified information specifically apply to everyone in the Executive branch except the president, who has plenary authority.

    Secondly, your argument seems to be along the lines of: “If a tree falls in a forest and no one is around to hear it, does it make a sound? ” The gist being what would happen if Trump declassified something in the privacy of his bedroom and didn’t tell anyone – or claimed at a later date that is what he did. Well, that would be problematic for all kinds of reasons, but it doesn’t violate 18 U.S. Code § 1924 and therefore make Trump criminally responsible.

    I mean, how do you expect such a prosecution to go? You would have to demonstrate that a President declassifying something solely for himself while telling no one else is criminal behavior, and then you’d have to actually prove that is what, in fact, happened.

    Good luck with that.

  • Zachriel Link

    Andy: The relevant EO’s and laws regarding the handling of classified information specifically apply to everyone in the Executive branch except the president, who has plenary authority.

    But which documents are classified? If whether a document is classified is a mystery, then no one can know in advance whether or not it is protected. You can’t punish someone if it isn’t clear what the rules are.

    Andy: Well, that would be problematic for all kinds of reasons, but it doesn’t violate 18 U.S. Code § 1924 and therefore make Trump criminally responsible.

    The legal problem with prosecuting Trump is proving intent, not whether the documents are classified.

    Andy: how do you expect such a prosecution to go?

    Saul Goodman, for the defense: My client, Mr. White, was under the impression that the president had declassified the documents. That means he had no intention of breaking the law.

    Prosecution: Your honor!

    Saul Goodman: Noted person, Andy, has said that if Trump thought it, then it must be so.

    Prosecution: That’s preposterous. The documents were clearly marked “top secret.”

    Saul Goodman: So? Trump may have declassified them in his mind.

    Prosecution (sputtering): Okay! Okay, we’ll call Trump as a witness.

    Saul Goodman: That won’t be necessary. My client thought the documents were unclassified by Trump-think. Even if he were wrong, that means there is no evidence of scienter or bad faith. My goodness. Walter is a high school chemistry teacher — not a spy!

    Court: If the administrative rules are not a valid means of determining whether a document is classified or not, then classification is ambiguous. A reasonable person may be confused as to what is classified or not. We reluctantly have to agree with the defense. Thank you, Mr. Goodman.

    Andy: You would have to demonstrate that a President declassifying something solely for himself . . .

    That’s not declassification, but sharing of classified information. Trump’s power to share classified documents ended when he left office. If he is in possession of classified documents, they have to be returned.

  • Andy Link

    I’m not sure how I can explain it any clearer, so at this point I will give up and agree to disagree.

    At the end of the day, whether Trump or any ex-President is subject to the laws you cited is an open question at best. He is certainly not subject to them while in the office.

    Proving that he didn’t declassify what he kept before he left office if Trump – as will likely happen- claims he did is a big hill to climb. And chances are, he will have people who will testify in court stating that yes, President Trump declassified that material before he left office and I witnessed it.

    This is even before getting into question of executive privilege and the very open question as to what extent Congress has or might try criminalize a President’s plenary power, even after he’s left office. Ex-Presidents have access to their records – including those that are classified – even though the ex-President is a civilian and not a government employee – a privilege that I certainly don’t have. And, as noted previously, ex-Presidents do not have to do anything the rest of us have to do including sign a classified NDA that tells us that there are criminal penalties for mishandling classified material. And they also are, as far as I’m aware, not subject to pre-publication classification review requirements pertain to everyone else.

    That’s it from me, feel free to have the last word.

  • Zachriel Link

    Andy: He is certainly not subject to them while in the office.

    The president has the power to classify or declassify, share or not share.

    Andy: Proving that he didn’t declassify what he kept before he left office if Trump – as will likely happen- claims he did is a big hill to climb.

    Ignoring Saul Goodman’s argument point isn’t a refutation. To convict Walter White of stealing classified information means proving Walter White knew the information was classified as relating to the national defense. But if Trump can declassify in his mind, then no one can know what is or isn’t classified. Classification and declassification require an order from the president. An order can possibly be verbal, but it can’t be declassified in his mind. A presidential order would set in motion an administrative process. See Executive Order 13526- Classified National Security Information.

    Andy: And chances are, he will have people who will testify in court stating that yes, President Trump declassified that material before he left office and I witnessed it.

    Plausible, but that would mean they were admitting to failing to do their jobs, which require them to take specific actions to declassify documents. But sure. That could happen. Of course, that supports our claim that declassification requires an order from the president. Here’s an example:

    Memorandum on Declassification of Certain Materials signed by Trump.

    Andy: This is even before getting into question of executive privilege and the very open question as to what extent Congress has or might try criminalize a President’s plenary power, even after he’s left office.

    Trump is just some guy from Florida.

    Andy: Ex-Presidents have access to their records – including those that are classified – even though the ex-President is a civilian and not a government employee – a privilege that I certainly don’t have.

    Only at the discretion of the current president.

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