From ‘Lock Her Up’ to ‘The FBI is Mean to Me.’
More like Subpar-a-Lago.
It’s pretty obvious what we’re going to talk about this week. I don’t have a witty intro, so let’s just get into it. Here is a pic of Hawaii in the meantime.
What a year this week has been. In case you fell into a black hole, the FBI “raided” former President Donald Trump’s home in Florida on Monday. The story is still developing, but obviously it’s a bombshell.
However, when a story like this breaks, it almost feels like it was explicitly designed to make social media the worst place ever, since the lack of news means there is a lot of baseless speculation to fill in the gaps. Case in point: Throughout the week, people on the Left have said that Trump himself appointed the judge who signed off on the warrant to search Mar-A-Lago. That is false. The judge here was a magistrate judge, and they are selected by the judges on the local District Court.1
In addition, conservatives were passing around a Newsweek piece that said Attorney General Merrick Garland had no knowledge of the raid on Monday. Garland himself debunked that piece in a statement he made yesterday (it’s also worth noting that Newsweek went bankrupt years ago and a cult in California purchased the name; the replacement is hot garbage and unreliable). So, I think it’s important to take a calm and sober look at this, without jumping to conclusions or engaging in wild speculation. I’ll be speaking with lots of caveats and citing back to “normal” legal procedure as a way to understand what happened here, but we are in a truly unique situation.
With that out of the way, let’s break this down into a Q&A sort of format.
Why did the FBI raid Mar-A-Lago?
When the raid2 happened on Monday, there was a lot of speculation as to what it was about. We’ve since gotten way more details, although it still feels like we’re lacking information. Two pieces have helped shed light on things: One piece from the New York Times and another one from the Wall Street Journal. To get into it, you sort of have to take a time machine back to 2021.
Earlier this year, there had been reports that when Trump left office, he took a bunch of things from the White House with him, and some of it was classified. At the time, the response to that story mostly consisted of a bunch of liberals saying, “BUT HER EMAILS,” but in terms of ongoing Trump scandals, it fell down pretty low on the totem poll. When the raid happened, there was lots of speculation that it was related to January 6th, and while that could still be possible, subsequent reporting has highlighted just how serious Trump’s theft actually was, or at least how seriously the Justice Department viewed it. In short, Trump took some stuff, the government asked for it back, Trump gave some of it back, and kept other stuff. The “other stuff” is what’s in question. From the Times:
Two people briefed on the classified documents that investigators believe remained at Mar-a-Lago indicated that they were so sensitive in nature, and related to national security, that the Justice Department had to act.
The subpoena was first disclosed by John Solomon, a conservative journalist who has also been designated by Mr. Trump as one of his representatives to the National Archives.
The existence of the subpoena is being used by allies of Mr. Trump to make a case that the former president and his team were cooperating with the Justice Department in identifying and returning the documents in question and that the search was unjustified.
I’m using the word theft on purpose, because if the Times’ reporting is correct, then that is what this has become. This isn’t merely a case of Trump wanting to hold onto a letter from Kim Jong Un, but it would have to be many levels more serious than that to spark such a drastic step by DOJ. Reporting yesterday by the Washington Post suggests that Trump was hiding NUCLEAR documents at Mar-A-Lago. That is a (surprisingly) broad category, so it’s still not clear how severely alarming that is, but the Wall Street Journal also reported today that TOP SECRET, classified information was found at Mar-A-Lago. All in all, none of this is good, and it suggests the DOJ needed to take serious action.
Here is generally the way a raid like this would occur:
An FBI agent puts together a detailed affidavit, outlining why a raid is necessary. Out of that affidavit, a warrant is formulated. They do not really have to show the judge that they could not obtain the materials using other means (like a subpoena), but they do have to show that the materials are relevant to a criminal investigation. They also have to show that the materials are there, or will be there during the two-week period the FBI has the authority to conduct a raid.
The judge would consider all of that, and while there is some back-and-forth about what the judge may want, if the judge thinks it is kosher, they sign off.
The FBI goes raiding.
A likely reason for the raid is that the FBI did not think Trump or his associates were being honest about the materials they were keeping at Mar-A-Lago. As the two main stories above document, Trump has been negotiating with the government for a while, and there was some back-and-forth about the documents in question, but he had adamantly refused to give up portions of them, and - as the raid shows - they were (obviously) classified and related to national security, so the FBI took action.
Is this related to January 6th?
Right now, the reporting seems to suggest that it’s not related to January 6th, but I want to highlight two things before definitively saying no:
Even if it’s not related to January 6th, that investigation’s shadow is hovering over this.
The “in plain sight” rule applies.
Conducting a raid of a former President’s residence is incredibly serious and extreme, and it would only be done if there had not only been overt evidence of law-breaking, but also something so dangerous that the DOJ was left with no other alternative. However, I don’t think Garland crosses this bridge unless Trump was exposed to serious criminal liability on the January 6th case. To put it simply, a day where Trump is raided, indicted, put in handcuffs, or fleeing law enforcement in a gold bronco is certainly coming. What Garland showed is that he’s ready for that outcome. Again, we don’t know if January 6th is relevant here yet, but I don’t think this raid happens without it.
Relatedly, if the FBI agents conducting the raid came across any evidence in their plain view that showed evidence of a separate crime (say, a paper that said, “FAKE ELECTORS SCHEME”), they could grab that and take it with them. That said, I don’t think the DOJ intended to use this raid as a slippery means to get stuff they could use in another investigation (called a “backdoor”).
Did Joe Biden do this?
President Biden and his team reportedly didn’t hear about any of this before they saw it on Twitter. Normally, that is how these investigations are supposed to go. Ever since the Nixon Administration, the DOJ has been “walled off” from the rest of the Executive (Bill Barr tried to change that, and used it politically).
Leaving that aside, Biden was in the middle of one of his best news cycles of the year: A stellar jobs report, good news on inflation, and the passage of major legislation cementing his agenda. To think he’d want to jettison all of that good news out of the headlines is fully insane.
Did Donald Trump do this?
Yes. As a matter of fact, from the looks of it the FBI tried to be as low-key as possible: They wore plain clothes and went to Mar-A-Lago when it was mostly unpopulated for the summer. They got there early in the morning and not a single aide or employee said anything about it being raided, and likely thought the FBI agents were just other members of Secret Service. It wasn’t until Trump himself broke the news on Truth Social that anyone actually picked up on it.
Is the FBI being really mean to Uncle Donald?
The short answer to this question is no. One of the most annoying things about the coverage of all of this is repeated use of the word, “unprecedented.” The FBI searching and seizing someone’s house is one of the most precedented things on the planet.
Had they done it to a former President before Monday? No. But also, Trump’s refusal to concede the election was also unprecedented. Before last week, me eating a poke bowl in Hawaii was also unprecedented, but now it is heavily precedented and has happened at least six times.
The President is not a king and Donald’s status as a “Former President” doesn’t give him any special privileges. In fact, he has already benefited heavily from that title when he shouldn’t. Right now, Trump is an un-indicted co-conspirator in a federal crime, for which his accomplice served actual jail time. He also obviously tried to obstruct the Mueller Investigation, which would be another federal crime; Mueller himself testified that Trump could be prosecuted for obstruction of justice once he left office.
He could have been indicted for either of these things on January 21, 2021, and wasn’t. The DOJ is and has been going easy on him for a long time. And that’s all before you get to the fact that if you or I had taken classified documents from the Federal government, the FBI would not have waited 18 months to come get them.
What happens next?
I think the main thing to take away from this episode - whether it’s a separate investigation or related to January 6th - is that President Trump is in a world of legal hurt. He was raided on Monday, he took the Fifth in a deposition on Wednesday, there are grand juries empaneled in D.C., Georgia, and his Organization is currently under indictment.
The raid was a five-alarm fire and a shocking moment, but people need to normalize it in their brains. What’s coming after this will inevitably be worse (maybe some Republicans in Congress should consider this when making public statements that rile up their constituents).
Lots of conservatives are also citing to Hillary Clinton and Hunter Biden as examples of a double standard. That generally means we are in the “whataboutism” phase of a Trump scandal: When Trump does something obviously wrong that can’t really be defended, the reflex is to just ask about his opponents (the next stage we go through just simply saying that what Trump did was no big deal).
But the two citations don’t really work. In fact, the cite to Hunter Biden sort of shows the integrity of the DOJ: The President’s son is currently under investigation by a Trump-appointed prosecutor, and they are currently considering whether or not to bring charges or issue fines. Does anyone seriously think that if Trump, Jr., was under investigation by an Obama-appointed prosecutor that Trump would just be silent about it, as Joe Biden has? He would be tweeting every day about how the investigation needed to end.
Kyle Cheney also has a really good piece on why the Clinton case is different from Trump’s, but to simply state the obvious: The reason Trump is in so much legal trouble is that he commits a lot of crimes.
Should-reads:
Philip Rotner has a good piece related to this: Donald Trump’s O.J. defense.
“They ripped her out of my arms while she clung to me.” The Atlantic has an incredible, infuriating piece on the Child Separation Policy set up by the Trump Administration.
Nate Silver is asking the crazy question: Could Biden ace his midterms? The news for the Administration has been remarkably positive lately. As noted above, inflation is taming itself, jobs reports are strong, and then you have to factor in the overturning of Roe. I have said many times on the Jackal that the GOP was going to take over Congress in November. I still think that is the likely outcome but it definitely seems less likely now.
That’s it from me! If there are any substantive updates I’ll try to do a shorter Jackal during the week, mostly because I want to write about all the legislation that is being passed soon. See you all next week.
I guess it is possible, but unlikely, that a District Court judge signed off on the magistrate’s signing off onto the warrant application, and that judge was appointed by Trump.
I’m using the term “raid” here in a more general sense, and because it is what people have used to refer to the investigation. I don’t really know if this qualifies as a raid, since the FBI seemingly bent over backwards to try and accommodate Trump and keep it quiet.