Looking At The Other Side

On Friday, I looked at what seems to be the best case for the FBI raid on Mar-a-Lago, that there was ample evidence of highly classified material stored there willy-nilly in rooms that, while they were under locks with video surveillance and controlled by the US Secret Service, had not been formally designated facilities eligible to receive classified material. This is a violation of bop-de-bop. Both Andrew McCarthy and Alan Dershowitz argue that this meets the probable cause standard for both an indictment and a search warrant.

On Saturday, I pointed out that in well-publicized prior cases, Hillary Clinton received no penalty for an equivalent violation under the "no reasonable prosecutor" standard, while John Deutch. having run afoul of the Clintons as CIA Director and being eased out of that job, went though several years of investigation in which neither the Justice Department nor the CIA would prosecute for similar violations. His case, clearly a political grudge by the Clintons, was ultimately resolved with a misdemeanor guilty plea the day before Bill Clinton left office, followed by a presidential pardon for that misdemeanor the following day.

I would say that Andrew McCarthy's conclusion is based on confirmation bias; as a former federal prosecutor, he would tend to view the existing system and his former colleagues favorably, while as a never Trumper, he's inclined to believe the worst of Trump. Dershowitz has been in the penalty box with legacy media ever since his defense of Trump in the first impeachment, and his interview with Newsweek was a chance to return to the game. Both McCarthy and Dershowitz make the bizarre assertion that the Justice Department, even though it had probable cause for the search warrant, won't indict based on the exact same probable cause. This if nothing else should be reason to question their view.

There's another problem with their assessment. It assumes that the boxes of White House documents in one or possibly other storage rooms at Mar-a-Lago were the sole object of the search, and the violation of bop-de-bop that this implies was the only crime, or element of the crime, being investigated. But much more of the affadavit was redacted than not, and we have no assurance that this is the case. We know at minimum that the FBI also searched the home office and had a safecracker open the safe in it, which suggests old secret documents mixed in with family miscellany cleaned out of the White House residence weren't the only objects of the search.

A federal judge's decision yesterday reinforces this view.

Trump and his legal team filed a motion Monday evening seeking an independent review of the records seized by the FBI during its raid of Mar-a-Lago earlier this month, saying the decision to search his private residence just months before the 2022 midterm elections "involved political calculations aimed at diminishing the leading voice in the Republican Party, President Trump."

U.S. District Judge from the Southern District of Florida Judge Aileen M. Cannon on Saturday afternoon said that the decision was made upon the review of Trump’s submissions and "the exceptional circumstances presented."

"Pursuant to Rule 53(b) (1) of the Federal Rules of Civil Procedure and the Court’s inherent authority, and without prejudice to the parties’ objections, the Court hereby provides notice of its preliminary intent to appoint a special master in this case," Cannon wrote in a filing Saturday.

A hearing is set for Sept. 1 at 1:00 p.m. in West Palm Beach, Fla. Cannon also ordered the Justice Department to file a response by Aug. 30 and provide, "under seal," a "more detailed Receipt for Property specifying all property seized pursuant to the search warrant executed on August 8, 2022."

This, if nothing else, strongly implies that the FBI was looking for much more than presumably declassified documents left over in the residence and packed into boxes, and given the redactions in the affadavit, we (along with Trump and his legal team) have no idea what it was. He and his attorneys have been able to convince a judge that this is a problem, which in itself should suggest McCarthy's and Dershowitz's view that the Justice Department probably won't indict is remarkably naive. (I don't think Trump should hire Dershowitz to defend him this time, by the way.)

While the McCarthy-Dershowitz line has dominated what news we've had about the case over the weekend, there's been at least one informed dissenting voice:

The FBI's former intelligence chief declared Friday the agency should not have criminalized the records dispute between Donald Trump and the National Archives and that the bureau appears to have failed to meet the probable cause standard for the invasive search of the former president's Florida estate.

"I think they're going to regret this," retired Assistant Director Kevin Brock told the "Just the News, Not Noise" television show after reviewing a heavily redacted affidavit the FBI used to persuade a judge to allow the Aug. 8 search at Mar-a-Lago.

Brock, ordinarily an ardent defender of his former agency, has raised concerns for several days that the bureau did not exhaust other means to resolve the dispute over presidential and alleged classified records Trump kept. He said he did not believe the FBI adequately considered the possibility that Trump had wide latitude to declassify records and declare them personal.

He said Friday his concerns were only heightened by the court-ordered release of the search warrant affidavit, which he noted was still heavily redacted.

. . . Brock said if the redacted sections of the affidavit don't lay out evidence that Trump's possession of the documents was clearly illegal, then "basically we have a search of the man's residence without cause being stated as to why something illegal happened."

As a true crime fan, I often watch A&E's The First 48, which documents homicide investigations that can include arrests and search warrants based on the probable cause standard that McCarthy and Dershowitz discuss. In a typical case, detectives find surveillance video that confirms witness accounts of the perp's appearance and clothing. Using tools like phone records, they narrow down where the perp was, whom he was with, and where he went after the crime. That all establishes probable cause for a judge to sign both an arrest and a search warrant using the same standard. Often they raid the perp's home and conduct the search at the same time as they put him in cuffs -- and in the search, they find the murder weapon and bloody clothing they specified in the search warrant.

We have no indication that any such specific evidence was gathered at Mar-a-Lago, nor any indication of what they may have been looking for. Even though McCarthy and Dershowitz think it's a silver lining that Justice maybe won't indict, I actually think it's troubling. If what they were looking for was so deadly serious, criminal espionage activity by a former president, why on earth didn't they indict? If they don't indict, then this whole thing is trivial, no?

The retired FBI counterintelligence head puts it pretty clearly,

"This is not anything that rises, or passes the no smile test, that rises to the level where you would actually do a search with armed agents of almost any other federal employee, let alone the former president of the United States," he said.

In other words, the FBI is being dragged in to give credibility to a political dispute, which is effectively Trump's argument that the raid "involved political calculations aimed at diminishing the leading voice in the Republican Party, President Trump." I think at best, the government's case is going to die the death of a thousand cuts -- at best. More likely, there'll have to be resignations.