The better question: Are they trying to hand Donald Trump the nomination in 2024? After news of the raid broke and leaks about its purpose began circulating yesterday evening, speculation about an attempt to disqualify Trump started circulating on social media. Attorney Marc Elias called it “a potential blockbuster”:
Yes, I recognize the legal challenge that application of this law to a president would garner (since qualifications are set in Constitution). But the idea that a candidate would have to litigate this is during a campaign is in my view a "blockbuster in American politics."
— Marc E. Elias (@marceelias) August 9, 2022
Say … didn’t we have this debate six years ago, when the Department of Justice refused to charge or even “raid” Hillary Clinton for the same crime and others related to mishandling classified material? Indeed we did, Charlie Savage recounted almost immediately in the New York Times, and that legal theory was discredited:
On its face, then, if Mr. Trump were to be charged and convicted of removing, concealing or destroying government records under that law, he would seem to be ineligible to become president again.
But there was reason for caution: The law briefly received a close look in 2015, after it came to light that Hillary Clinton, then widely anticipated to be the 2016 Democratic presidential nominee, had used a private email server to conduct government business while secretary of state.
Some Republicans were briefly entranced with whether the law could keep Mrs. Clinton out of the White House, including Michael Mukasey, a former attorney general in the administration of George W. Bush. So was at least one conservative think tank.
But in considering that situation, several legal scholars — including Seth B. Tillman of Maynooth University in Ireland and Eugene Volokh of the University of California, Los Angeles — noted that the Constitution sets eligibility criteria for who can be president, and argued that Supreme Court rulings suggest Congress cannot alter them. The Constitution allows Congress to disqualify people from holding office in impeachment proceedings, but grants no such power for ordinary criminal law.
Mr. Volokh later reported on his blog that Mr. Mukasey — who is also a former federal judge — wrote that “upon reflection,” Mr. Mukasey had been mistaken and Mr. Tillman’s analysis was “spot on.” (Mrs. Clinton was never charged with any crime related to her use of the server.)
That deserves more than a parenthetical. As I wrote in my earlier post on the subject, the Department of Justice — run at the time by Loretta Lynch, appointed by Clinton’s ally and president Barack Obama — refused to charge Clinton with any crime. Clinton not only had retained and transmitted thousands of classified digital documents through her private, unsecured, and unauthorized server, she also destroyed half of its records before reluctantly handing the server over to the FBI.
The DoJ’s purpose in the raid has not yet been made clear, of course, which makes it difficult to calculate whether this unprecedented step is justified. If it’s just to retrieve documents and pursue a criminal case that the DoJ refused to press against Clinton, it’s going to blow up in Merrick Garland’s face and perhaps Democrats as a whole. Even Andrew Yang, who ran for the Democratic nomination to oppose Trump in 2020, warns that the potential for backfire is enormous:
“If they raided his home just to find classified documents he took from The White House,” one legal expert noted, “he will be re-elected president in 2024, hands down. It will prove to be the greatest law enforcement mistake in history.” https://t.co/xMznFPn0UG
— Andrew Yang🧢⬆️🇺🇸 (@AndrewYang) August 9, 2022
The Politico playbook link has lots of coverage about the fallout in Washington, where no one seems able to explain how the raid benefits … anyone. In fact, they quote the Miami Herald in noting that Trump had actually been cooperating to some extent before the raid:
Trump suggested that he was continuing to work with FARA and DOJ on the matter, and was thus dumbfounded by the swarm of FBI agents that spent hours combing through materials Monday in Mar-a-Lago while Trump was away in Manhattan. “After working and cooperating with the relevant Government agencies, this unannounced raid on my home was not necessary or appropriate,” his statement said.
But that cooperation by Trump gave agents the justification they needed to obtain their warrant, according to the Miami Herald:
“Federal agents were able to establish probable cause for the warrant because Trump and his lawyers had already turned over some classified documents that had been sought by the National Archives and Records Administration, the source said. Agents suspected that Trump was unlawfully holding other classified documents from his presidency in his private club and residence at Mar-a-Lago, which is the crux of the investigation led by the FBI and Justice Department in Washington, D.C.
“During Monday’s raid, FBI agents worked in ‘taint’ teams while gathering and separating the alleged classified materials to ensure that none was privileged correspondence between Trump and his lawyers, which would be off limits to investigators and prosecutors.”
That still leaves us with Donald Rumsfeld’s “known unknowns and unknown unknowns.” However, it further undermines the idea that the warrant was necessitated by an outright refusal of Trump to cooperate on the document dispute. Either something else is going on, or Merrick Garland really screwed the political pooch here — especially just as Democrats thought they were ringing up a legislative win with their plan to double the size of the IRS. Do you think Republicans won’t connect that to the raid on Mar-a-Lago in the midterms?
So no, this isn’t going to DQ Trump. It might end up electing him again as Yang and the unnamed Politico source argue, although that’s almost as facile in August 2022 as the DQ argument. After the midterms, Republican voters will take a deep breath and still be faced with the prospects of nominating a younger candidate eligible for two terms and without the baggage of the last six years, or a 78-year-old candidate who can only serve one more term and whose unpopularity might weigh down the entire 2024 ballot.
By the way, Yang isn’t the only former Trump opponent questioning the raid. Strange bedfellows, yada yada yada …
DOJ must immediately explain the reason for its raid & it must be more than a search for inconsequential archives or it will be viewed as a political tactic and undermine any future credible investigation & legitimacy of January 6 investigations.
— Andrew Cuomo (@andrewcuomo) August 9, 2022