Couple of reminders of things I’ve already written, and should have written.
First, I acknowledged that I don’t claim any expertise in the law regarding classification and records, so I’d have to rely on others until I could come up to speed. What I didn’t write but should have, is that I’m not going to rely (and neither should you) on the mostly politically-driven lawyers who populate CNN and MSNBC, #TheResistance Twitter Lawyers, and what’s written in NYT, WaPo, or mainstream corporate media as to the law.
Second, I didn’t understand why Trump’s lawyers took so long to file a motion regarding the search warrant, and why the motion didn’t expressly challenge the warrant itself, not just the scope of the records seized. It was just a gut instinct, I not only claim no expertise in the law regarding classification and records, I also don’t practice criminal defense law. But something seemed wrong from the start.
Someone whose legal analysis I would credit is David Rivkin. I’ve seen him and his team in action, and they are really good. He’s been involved in the notorious Wisconsin John Doe cases representing the conservative victims of the prosecutorial misconduct.
Rivkin and his law partner Lee Casey, had an Op-ed in The Wall Street Journal on August 22, 2022, that confirms my gut instinct that the search warrant was rotten from the get-go, The Trump Warrant Had No Legal Basis. Here’s an excerpt, but read the whole thing at the link:
Was the Federal Bureau of Investigation justified in searching Donald Trump’s residence at Mar-a-Lago? The judge who issued the warrant for Mar-a-Lago has signaled that he is likely to release a redacted version of the affidavit supporting it. But the warrant itself suggests the answer is likely no—the FBI had no legally valid cause for the raid.The warrant authorized the FBI to seize “all physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§793, 2071, or 1519” (emphasis added). These three criminal statutes all address the possession and handling of materials that contain national-security information, public records or material relevant to an investigation or other matters properly before a federal agency or the courts.The materials to be seized included “any government and/or Presidential Records created between January 20, 2017, and January 20, 2021”—i.e., during Mr. Trump’s term of office. Virtually all the materials at Mar-a-Lago are likely to fall within this category. Federal law gives Mr. Trump a right of access to them. His possession of them is entirely consistent with that right, and therefore lawful, regardless of the statutes the FBI cites in its warrant.Those statutes are general in their text and application. But Mr. Trump’s documents are covered by a specific statute, the Presidential Records Act of 1978. It has long been the Supreme Court position, as stated in Morton v. Mancari (1974), that “where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” The former president’s rights under the PRA trump any application of the laws the FBI warrant cites.
Got that? According to Rivkin and Casey, the entire premise for obtainin the warrant was legally faulty. Read the rest for more of the reasoning:
Nothing in the PRA suggests that the former president’s physical custody of his records can be considered unlawful under the statutes on which the Mar-a-Lago warrant is based. Yet the statute’s text makes clear that Congress considered how certain criminal-law provisions would interact with the PRA: It provides that the archivist is not to make materials available to the former president’s designated representative “if that individual has been convicted of a crime relating to the review, retention, removal, or destruction of records of the Archives.”Nothing is said about the former president himself, but applying these general criminal statutes to him based on his mere possession of records would vitiate the entire carefully balanced PRA statutory scheme. Thus if the Justice Department’s sole complaint is that Mr. Trump had in his possession presidential records he took with him from the White House, he should be in the clear, even if some of those records are classified.
Harvard Law Prof. Jack Goldsmith disagrees with Rivkin and Casey:
… The PRA gives a former president certain rights to access and limit access to the documents in the possession of the United States; but it rules out the possibility of a former president possessing presidential records after his presidential term.Rivkin and Casey claim that the PRA “doesn’t address the process by which a former president’s records are physically to be turned over to the archivist, or set any deadline, leaving this matter to be negotiated between the archivist and the former president.” True. But the absence in the PRA of a “process” or “deadline” for a former president to transfer records to the archivist is irrelevant to whether former president Trump has or ever had lawful possession. Again, the records are by statute owned and controlled by the United States, not the former president. Even if the documents are not in actual possession of the archivist at the end of a presidential term, the PRA makes clear that the former president has no claim, none, to keep the documents for himself. They are not his documents to take, or keep, or negotiate the transfer of.Whether the three criminal statutes cited in the warrant can be a basis for a prosecution for a violation of the PRA, especially against a former president, is a trickier question. But I don’t think this complex legal question matters to the validity of the warrant. First, the applicability of these criminal statutes—18 U.S.C. § 1519, 18 U.S. Code § 2071, and 18 U.S.C. § 793—does not necessarily turn on whether the PRA was violated; they can apply in several ways whether or not Trump had a valid claim to possess the documents.Second, Rivkin and Casey assume throughout that the only potential violator of these statutes is the former president. But the warrant does not say this. The warrant describes the location of the documents connected to a crime, not the identity of the violator. And—this is important —many people connected with Trump might have handled these documents in ways that violated the statutes.
#TheResistance Twitter lawyers also disagree:
My money is on Rivkin and Casey. Trump needs to send his best people to court.
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