There has to be one, right? The FBI doesn’t just go to a federal judge for a search warrant for the home of a former president on its own — and presumably a federal judge doesn’t just casually sign off on such a request, either. NBC’s Ken Dilanian urges caution in jumping to conclusions at this point, but states the obvious when saying that this had to have gotten approved by Attorney General Merrick Garland prior to the raid on Mar-a-Lago:
.@KenDilanianNBC is explaining the process of obtaining a search warrant for a former President in his home, what the FBI would have to establish to get a federal judge to authorize a warrant of this nature, and other details. pic.twitter.com/g5WOPtCF72
— TODAY (@TODAYshow) August 9, 2022
Dilanian’s correct that it’s no small matter to get a federal judge to sign off on a warrant, let alone one targeting a former president who might run for office next cycle. That would, or at least it should, set off all sorts of red flags for a judge. This point got made repeatedly on social media for a good reason — it’s true. Since we haven’t yet seen the warrant, we can’t assess what case the FBI and the Department of Justice put together to authorize this warrant. One has to presume as a starting point that the federal judge saw this warrant application and the proposed search of Donald Trump’s residence as a necessary and appropriate action.
Some of the early reporting doesn’t make a lot of sense in that context, however. As John noted last night, the early leaks to reporters said that this wasn’t about January 6 or any of Trump’s other woes, but about the illegal holding of classified material. The National Archives has been in conflict with Trump ever since he left office, accusing the former president of retaining records subject to the Presidential Records Act of 1978 (PRA). When they retrieved 15 boxes of material in February by mutual agreement, they discovered classified material and got the FBI and DoJ involved in the dispute, appropriately so given the statutes governing the handling of classified material.
Getting a search warrant on the basis that Trump was still holding other classified material seems tricky after the first negotiated settlement, especially if intermediate steps weren’t taken first — like suing Trump and getting a civil order to force Trump to return those documents. Such a search-warrant request would require, as Dilanian says, a specific and detailed description of what the FBI wanted to find, followed by a post-search inventory of everything seized. The DoJ could have argued that such a step would have prompted the destruction of those documents, though, and a federal judge may have been sympathetic enough to that claim to authorize the raid yesterday to get the records back.
But if that’s all this is — a dispute over handling classified material — the DoJ had better prepare itself for major blowback. Garland’s predecessors rather infamously refused to prosecute former Secretary of State and then-presidential candidate Hillary Clinton for the exact same crime while she ran against Trump, and perhaps on an even greater scale. Remember the infamous server that Clinton “wiped, with a cloth” before reluctantly handing it over to the FBI? That had thousands of classified documents in digital form, including a handful classified at Top Secret-Compartmented, the highest range of protection for the nation’s secrets. The decision not to pursue charges in that case blew up into a major scandal for the Barack Obama administration and especially Loretta Lynch and James Comey, who would go on to other failures.
Perhaps the DoJ doesn’t plan to prosecute Trump over this either, but just wanted the materials back. If Trump wasn’t cooperating with the DoJ on compliance with the PRA, that also might have given a federal judge good reason to sign off on this warrant. Former presidents are not above the law, after all.
However, that’s also a bit cute when it comes to real-world consequences. Raiding the home of a former president of the opposing party to the current administration is an unprecedented act. It is guaranteed to blow up the political equilibrium and create backfire in several different directions. Tossing that gasoline into the current political fire just to force the return of some documents and dropping the matter afterward would be very strange indeed.
Not to mention self-destructive. Republicans who might have felt a little complacent riding a red wave in November have suddenly gotten angry and energized all over again and are accusing Garland and Joe Biden of conducting a political vendetta, and of setting a precedent they will not enjoy living under:
One source said House Republicans would consider creating something like the Church Committee, which investigated a broad range of governmental misconduct by intelligence agencies during the mid 1970s. That select Senate panel, chaired by the late Sen. Frank Church (D-Idaho), was tasked with looking into “illegal, improper or unethical activities” by any government agency.
Rep. Jim Jordan (R-Ohio), ranking member on the House Judiciary Committee and another Trump ally, demanded during an appearance on Fox News that Attorney General Merrick Garland and FBI Director Christopher Wray meet with lawmakers to explain the reasons for the raid. The House will be in session on Friday to vote on the Democrats’ reconciliation bill.
Sen. Marco Rubio (R-Fla.) suggested President Joe Biden “is playing with fire by using a document dispute to get the @TheJusticeDept to persecute a likely future election opponent.”
“Because one day what goes around is going to come around,” Rubio added.
This kind of reaction is very predictable, given the unprecedented nature of this raid. Biden may not be strategic enough to see it, but Garland and FBI director Christopher Wray certainly are. They had to know that they were buying years of misery with this operation, which prompts the question of what they had in mind conducting it. It has to have value enough to outstrip the current blowback, not to mention re-fueling the fire of Trump’s presidential prospects, which had begun to fade in polling of late.
It can’t just be an attempt to prosecute Trump under the PRA or statutes involving handling of classified material, as news reports said last night. That’s a non-starter, especially with the multiple refusals to prosecute Hillary Clinton under similar conditions. There’s either something bigger at stake here … or Garland and Wray just made a volatile situation a lot worse than it needed to be.
Where does that leave us? Somewhere in the middle of Donald Rumsfeld’s famous “known unknowns and unknown unknowns.” Until we see the warrants and the inventory of materials produced, we won’t grasp exactly what the DoJ had in mind with this raid. At this point, it had better be something big enough to justify the seeming banana-republic tactics taken last night. Keep your powder dry until then, but stay tuned.