Just a few thoughts on that FBI swoop on Trump's Florida home

[ with a video interview of Jason Baron]

My biggest shock? It’s remarkable that it didn’t leak. But there is a lot to unpack here.
Trump's voter base


10 August 2022 - It’s remarkable that it didn’t leak. A story of this magnitude – the FBI raiding the compound of a former president, executing a search warrant in connection with a criminal investigation – is the kind of story that every well-connected reporter in Washington would usually have heard about.

But the major papers seemed surprised on Monday night, scrambling to catch up as the story unfolded, first revealed by a local blogger, and then confirmed by The Donald himself via his MAGA *blogging platform*, Truth Social.

I was having breakfast today with former DOJ attorney Kris Hensley who is participating in one of the Mykonos sessions tomorrow, and he made the following observations:

- if the Justice Department and the FBI were able to keep news of the raid from leaking, it implies that they are treating their investigation into Trump with extreme caution

- a "raid" like this, of such a high-profile/polarizing political figure would have been approved and monitored by officials at the very top, and no doubt with a warrant from a federal judge

- he had doubted the DOJ was willing to make Trump himself the object of a serious criminal inquiry, but now he was not so sure


The conventional wisdom is that the raid was carried out pursuant to Trump’s improper handling of classified documents.

NOTE: during the January 6 hearings, witnesses noted Trump frequently ripped up presidential papers and clogged toilets with them (home and abroad).

Trump has long been dogged by accusations that 15 boxes of secret material came with him from the White House to Mar-a-Lago after he was finally forced to leave office in January 2021, a move that would violate federal codes governing the destruction or removal of such materials. If that is indeed what the feds are looking into, then the raid on Trump’s Florida resort will be less about the content of whatever documents they may find than the mere physical presence of classified material in a place it is not supposed to be. In that case, it won’t be that the agents uncover a secret journal of Trump’s crimes, or hidden evidence of previously untold corruption. It will be that the presence of documents themselves, housed away in Trump’s safe or somewhere else within the gaudy halls of his home, is evidence of wrongdoing.

Jason R Baron, the first appointed Director of Litigation at the U.S. National Archives and Records Administration, and someone very well known to our readership, put this in perspective earlier on CNN:
And then there are the far murkier bits. As I noted in a post last year, the U.S. intelligence community believes Trump stole nuclear secrets, and many have long-held suspicions he gave information to the Saudis (based on the frequent travels to Saudi by his son-in-law Jared Kushner, as well as mobile monitoring), or even Russia. That's why it was not only the FBI at the raid but also agents from the Counterintelligence and Export Control Section of the DOJ which handles such matters. My guess is the warrant was probably easy to get. And why Trump won't release the warrant. It would clearly outlines his crimes, what the DOJ was looking for. 

My friend the former DOJ attorney Kris Hensley who I noted above also said there is a larger picture to consider, and this was also outlined by Peter Strzok (a 26 year FBI veteran, now at the Georgetown School of Foreign Service) who noted in a Linkedin post:

1. The government does not usually use subpoenas to recover classified info from those not authorized to receive it.

2. Unauthorized possession or storage of classified documents are, by definition, a threat to national security. And the government must neutralize that threat. If a subpoena is not an option, then the government has a dilemma.

3. So in this case either (a) Trump voluntarily returns the docs, or (b) they get a search warrant to retrieve them. It seems like they tried, for over a year, to do (a). What if that fails? One imagines that then they have to keep threatening his lawyers that they will have to come and take them, which also seems to have happened (there is a log).

4. So basically in this scenario this becomes a game of chicken. The government sends folks from the DOJ. Trump still has the documents. At some point, the DOJ decides to bite the bullet because it is too risky to allow sensitive documents to remain at Mar-a-Lago.

5. One imagines a search & seizure warrant is requested, which lists, e.g., "18 U.S.C. 793(e) -- willful failure to return national defense information".

6. With the search warrant gets signed off, they go in, comb the place, remove all of the documents which may pose a threat to national security. Now what? The threat has been neutralized. In other words, the goal -- eliminate the threat -- has been achieved, through the means -- the warrant.

7. So - mischief managed. 

Now, does the DOJ *also* need to punish Trump? That's a whole different ballgame. As many have pointed out, probable cause for a search warrant is lower than beyond a reasonable doubt to convict -- not to mention the hurdle of indicting and prosecuting a former president of the United States.

Counterpoint: it looks really bad to go into Trump's home (even if he was warned repeatedly that this is what would happen), execute a search, and then not charge him. I think the public would need to know more about the nature of the documents taken to be satisfied.

And, of course, the review of the documents may well reveal a basis to prosecute Trump, perhaps for the same crimes listed in the warrant application or something else. But the need to do that is less pressing if the impetus for the warrant in the first place is to eliminate the threat to national security and there was no other option.
It is 3pm Washington DC time as I write this and I imagine new information has rolled out, and will continue to roll out, but I am not going to check. It is 10pm here and time for a nightcap with my crew. So just a few points.

The raid comes after a season of blockbuster January 6 committee hearings, which have revealed substantial new information about the extent of Trump’s foreknowledge of the insurrection and his approval of it. The notion that the DOJ’s changing posture toward Trump has nothing to do with these hearings strains credulity. If the hearings changed the department’s calculus, that’s all for the better. As Nick Purcell of DefenseOne noted:

The DOJ is a risk-averse body by nature, and the attorney general, Merrick Garland, has been especially timid and squeamish even by the standards of his office. He didn’t want to pursue what could look like a politically motivated prosecution of a political opponent; he didn’t want to annoy the sizeable minority of the US that sees Trump as a beloved, almost messianic figure. It long looked as if the department would not have the stomach for a real investigation of Trump – that they would allow his crimes to go unanswered for fear of appearing too political. But the hearings surfaced new evidence, and brought new pressure to bear on the department – that of an outraged populace.

It may also be that the risk of political pushback against the DOJ from an empowered Republican party increasingly seems like something that it’s not worth being afraid of. In the hours after the raid, Trump and his Republican allies made it clear that they thought they could gain a political advantage by casting themselves as the victims of an aggressive federal bureaucracy that was overstepping its authority. On Fox News, the rightwing media personality Dan Bongino called the raid “third world bullshit”.


But this, too, may have changed the DOJ’s calculus: the reality that in its current state, the Republican party will retaliate whether the law enforcement agencies investigate Trump or not. In this context, Garland’s changed posture towards Trump begins to make sense, even if the more cynical among us may still be surprised by his evidently renewed courage. If Garland is going to be punished for upholding the law and for not upholding the law, then the consequences for action and inaction become different to tell apart. He may as well do his job.

And one last thing - and I would like nothing more than to be wrong about this. But the reckless response by the GOP-Fox News axis to the FBI’s search of Mar-a-Lago makes it feel as though we’re falling into the abyss. The worst bit for me is the threat of political violence from far-right extremists. Yes, that has been growing for years, but calls to arms reached a fever pitch in pro-Trump social media after Monday’s court-ordered search at former president Donald Trump’s Florida compound. Dana Milbank, a columnist for The Washington Post, catalogued some of them: “When does the shooting start?” “Summertime was made for killing fields.” “Lock and load.” “Tomorrow is war.” “Pick up arms, people.”

Fox News and other conservative outlets exploded with talk of “We’re at war” and “assassination,” and “we must fight this attack on the country" and Trump supporters, and calls for revenge against a “corrupt” American “KGB.” Elected Republicans erupted in cries about the “weaponized politicization” done by a Democratic “Gestapo” and a “tyrannical FBI,” and about the need to “make sure these tyrants pay the price.” They called for retribution: “Destroy the FBI.” “No one is safe.” “You’re next.” “They’re coming for YOU.”

These are open invitations to the violent and the unstable to take matters into their own hands.

We know that violent speech, particularly when so many are already feeling desperate and on edge, leads to violent acts. We have been here before. I remember all the studies during the Obama administration that explained far-right, anti-government groups were proliferating. I remember Sarah Palin, the former vice-presidential nominee, issued her “Don’t Retreat, Instead — RELOAD!” edict, while prominent Republicans touted guns to fight. A wave of threats and actual violence ensued — office windows shattered, armed demonstrators marching across from the capital — and culminated in a madman’s killing of six people in D.C., and the grievous wounding of Rep. Gabby Giffords at a community event.

And then we had January 6th.

An immediate concern? The safety of the federal judge in Florida who approved the search warrant. Once his name made its way to right-wing forums, threats and conspiracy theories soon followed. Online pro-Trump groups spread his contact information and, as of yesterday afternoon, the judge’s official page was no longer accessible on the court’s website and he now has 24/7 protection from U.S. Marshalls.

Right-wing, anti-government groups are more and more ascendant. And now it is easier for a group, or even a single mentally unstable person, to unleash mass carnage. Monday’s search of Mar-a-Lago puts the U.S. at a perilous moment.

This whole situation is red meat for the Trump base. This tribal urge does not withhold judgment until we learn more — any! — details of the warrant or the broader investigation that prompted it. Instead it echos Trump’s deeply political line of all argument. This is exactly what Trump has worked hard to inculcate since at least 2016, and he is succeeding with his base. These Pavlovian reactions that the FBI raid provoked in the ranks of the Republican Party simply underscore Trump's toxic influence on the GOP.

Extremism works that way. With a burst of inflammatory rhetoric this week telling millions of Republicans that they should abandon trust in the FBI, the electoral system, schools - virtually all functions of government. Gone is the traditional description of democracy as “governance through conflict,” a system that encourages vigorous debate but with mechanisms to resolve disagreements peacefully. The problem is that the 2020 election denial was a catalyst in the militant movement’s long game to undermine democratic institutions and seize power by force.

And if you can’t trust the institutions that are designed to peacefully resolve disputes and you begin to see the other side as an enemy, the desire to act - and the need to act - really becomes more easily justified.

America’s tribes are ready for war. After Mar-a-Lago, the middle ground has been plundered. I'll address this in more detail over the weekend.

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