Dershowitz on Mar-a-Lago raid: Whatever happened to a subpoena?

Mary Altaffer

A good question, and from an always-provocative source. Alan Dershowitz lost his friends by defending Donald Trump, both formally in an impeachment trial and more routinely as a pundit. That removes any “statement against political interests” cachet this argument might otherwise have, but it does point out that Merrick Garland had more choices as Attorney General than to raid the home of a former president and likely presidential candidate to be or to ignore Trump altogether

Why not first subpoena the documents in question — if indeed that was the real purpose of this raid?

The decision by the Justice Department to conduct a full-scale morning raid on Donald Trump’s Mar-a-Largo home does not seem justified, based on what we know as of now. If it is true that the basis of the raid was the former president’s alleged removal of classified material from the White House, that would constitute a double standard of justice.

There were no raids, for example, on the homes of Hillary Clinton or former Clinton administration national security adviser Sandy Berger for comparable allegations of mishandling official records in the recent past. Previous violations of the Presidential Records Act typically have been punished by administrative fines, not criminal prosecution. Perhaps there are legitimate reasons for applying a different standard to Trump’s conduct, but those are not readily obvious at this stage.

The more appropriate action would have been for a grand jury to issue a subpoena for any boxes of material that were seized and for Trump’s private safe that was opened. That would have given Trump’s lawyers the opportunity to challenge the subpoena on various grounds — that some of the material was not classified; that previous classified material was declassified by Trump; that other documents may be covered by various privileges, such as executive or lawyer-client.

One reason to conduct a raid would be to ensure the preservation of the records. A few days before the raid, reports swirled (so to speak) about Trump clogging White House toilets by flushing documents rather than retaining them under the PRA. Axios even has pictures about what Maggie Haberman claims are photographic records of Trump’s efforts to use the “telltale toilet.”

Trump denies it, which one can take or leave. In this case, though, no one was alleging that Trump was destroying the records — and he had been at least negotiating over their status for the past several months. Plus, Dershowitz notes, Trump was a thousand miles away at the time the FBI served the warrant and conducted the raid:

Searches and seizures should only be used when subpoenas are inappropriate because of the risk of evidence destruction. It is important to note that Trump himself was 1,000 miles away when the FBI’s search and seizure occurred. It would have been impossible, therefore, for him to destroy subpoenaed evidence, especially if the subpoena demanded immediate production. If he or anyone else destroyed evidence that was subject to a subpoena, that would be a far more serious crime than what the search warrant seems to have alleged. It is unlikely that there is a basis for believing that the search warrant was sought because of a legitimate fear that subpoenaed evidence would be destroyed.

That doesn’t sound as though the DoJ was concerned about document destruction. That is one reason, Dershowitz argues, that this raid appears to be overly aggressive and potentially “unjust”:

Neutral, objective justice must not only be done: it must be seen to be done.

For zealous Trump haters, anything done to Trump is justified. For zealous Trump lovers, nothing done to him is ever justified. For the majority of moderate, thoughtful Americans, however, the Justice Department’s raid likely seems — at least at this point in time — to be unjust or needlessly confrontational.

That seems especially true when — as Dershowitz points out — Merrick Garland and Christopher Wray had a potentially effective and far less confrontational option available. Why not try the subpoena first, with enough specificity to ensure that serious charges could develop if Trump attempted to destroy the documents?

Dershowitz agrees with those cheering the raid that presidents should not be above the law, but notes the risks about putting them below it:

It is true that a president or former president is not above the law — but neither should he or she be below the law. Precedents established in relation to Democrats must be equally applied to Republicans. On the face of it, this standard has not been met here.

On that point, Jonathan Turley points out yet another precedent shattered in the raid:

While the Presidential Records Act requires the preservation of such documents (and the removal was likely in violation of that law), it is relatively weak on enforcement elements. As shown in prior administrations, presidents have long chaffed at both the limitations or disclosures imposed by the Act.

The 1978 law requires that any memos, letters, emails and other documents related to the president’s duties be preserved for retention by the National Archives and Records Administration at the end of an administration. That includes Section 2071 which states that anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates or destroys … any record, proceeding, map, book, paper, document, or other thing, filed or deposited … in any public office” can be fined or face up to three years in prison if convicted.

Those laws have never be used against a former president.The allegation of the removal of classified material can trigger other laws beyond the PRA that bar the removal of such material without authorization and without proper protections. Those laws were raised with regard to former FBI Director James Comey removing FBI material and then leaking information to the press. Comey clearly violated federal law but was not prosecuted.

In the case of President Bill Clinton’s former national security adviser Sandy Berger, the violations involved stuffing classified material into his pants and socks to remove them from the archives and to retrieve them later. Berger was spared any jail time and allowed to plead to a misdemeanor. He did not even loss his security clearance permanently and was given a three-year suspension. Likewise,  General David Petraeus was accused of giving access to classified information to his alleged lover and was also given a generous plea.

Both Dershowitz and Turley warn against jumping to conclusions regarding the purposes of the raid. As Andy McCarthy wrote earlier today, it may very well be that the search warrant targeted the records as just a predicate for a completely different allegation of criminal conduct, likely tied to the January 6 riot. In the meantime, though, we can still point out how Garland needlessly escalated this — if indeed it’s about the classified material Trump may or may not still hold.

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