Replies to post #418632 on Tornado Alley (PROG)

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The Two-Pronged Test That Could Put Trump in Prison

Cassidy Hutchinson’s Testimony Changed Our Minds About Indicting Donald Trump

Related:
Takeaways: Trump’s mind ‘made up’ on fraud ahead of Jan. 6
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As the January 6th hearings unfold, a former U.S. Attorney discusses the possibility of criminally prosecuting the former President.

By Isaac Chotiner
June 14, 2022

IMAGE
“The problem is that we have statutes on the books based on what Congress can envision,” Barbara McQuade says. “And I don’t think Congress
ever imagined that a President would try to do what Trump is accused of doing.” Source photograph by Brendan Smialowski / AFP / Getty

All links

The House select committee investigating the attack on the Capitol on January 6, 2021, has begun to hold public hearings, laying out, in explicit detail, how Donald Trump was repeatedly told by key advisers that he fairly lost the 2020 election, among other revelations .. https://www.newyorker.com/news/our-columnists/what-the-january-6th-hearings-are-really-about . Nevertheless, Trump continued to encourage protests against the election’s certification, and expressed sympathy for the view that Vice-President Mike Pence deserved to be killed. The biggest question hanging over the hearings is whether they will contribute to a criminal case against the former President. The Justice Department is conducting a wide-ranging investigation into January 6th, but this is not the first time that Trump has appeared to be in the crosshairs of prosecutors.

If the former President is charged, what exactly would the charges be, and how tough would the case be to prosecute? To talk about this, I recently spoke by phone with Barbara McQuade, a professor at the University of Michigan Law School and a former United States Attorney for the Eastern District of Michigan. (She resigned from her position, which she’d held since 2010, in the early days of the Trump Administration.) During our conversation, which has been edited for length and clarity, we discussed why Trump’s mind-set is so important to any criminal case, the arguments he might make to defend himself, and whether the Justice Department is too concerned about the optics of charging a former President.

If a case is made against Trump, what precisely would it be for?

It would require a full investigation to see if you can mount sufficient evidence. And the Justice Department will be the first to tell you that it investigates crimes and not people. But, with that in mind, it seems to me that some potential crimes here are: first, conspiracy to defraud the United States; and, second, conspiracy to obstruct an official proceeding. The first one is more broad. The second one is more specific.

What does that mean, “conspiracy to defraud the United States”?

The statutory citation is Title 18 of the United States Code, Section 371. It is sometimes referred to as the Klein Conspiracy, after a case named United States v. Klein. It is frequently used in cases of tax violations, but what it means is that someone with a fraudulent intent did something to obstruct or impede the official functioning of government. And so, in this instance, it would be something like, Trump and others conspired to defraud the American people and interfere with the proper transfer of Presidential power. And it could be as simple as getting Mike Pence to refuse to certify the vote when he had a duty to do so. Sometimes people think about the big picture, that you have to tie Trump to the physical attack on the Capitol. And that could do it, because that was one way that the certification was obstructed. But it could also simply be his efforts to pressure Mike Pence to refuse to certify the vote. And that would be an obstruction of an official proceeding.

Liz Cheney said there are seven different schemes that they’re going to try to prove in the next few weeks. It could be that they’ve got seven different ways that they’re going to try to show conspiracy to defraud the United States, but any one of them is enough to obtain a conviction. Alternate slates of electors, or trying to persuade Georgia to change the outcome in that one state. Any of those things could suffice for conspiracy to defraud the United States.

And what about a conspiracy to obstruct an official proceeding?

That would relate specifically to the certification effort on January 6th. Again, it could be proved by a number of different methods. It could be proved by inciting the mob. That would be one way, but I think that’s much harder than you need. It could be proved, again, just by pressuring Mike Pence to refuse to certify. That could be an obstruction of an official proceeding of Congress. And, by interfering with that in a way that is fraudulent, that could be a violation of that obstruction statute.

There are two connected but separate things. The first is Trump trying to obstruct the certification of Biden as the next President. And the second is the law-breaking that occurred from the mob on January 6th. The mob may have been a tool to put the first scheme into effect, but there were also laws broken by the mob itself, such as invading the Capitol and assaulting police officers. Is your sense that the crimes we would likely see regarding Trump would be more related to the certification than the actual physical destruction of property and assault of police?

Yes. I suppose the committee has dangled the latter a little bit. I still haven’t seen any evidence of it, but if they could prove that someone close to Trump met with the Oath Keepers and the Proud Boys on January 5th and said, “Tomorrow, I want you to breach that Capital and whatever happens, come hell or high water. You must make sure that their proceeding does not continue,” then you could link up the two as a conspiracy. It would still be to obstruct an official proceeding, not for the actual violence, unless you had a specific agreement: “I want you to beat up cops.” You’d have to show an agreement between those specific groups. And I don’t think we’ve seen that yet. We may never get there, but I don’t think we need to, because you can just show that he was trying to get alternate slates of electors, or that he was pressuring Pence to refuse to certify, or that he was pressuring Georgia’s secretary of state, Brad Raffensperger, to find him eleven thousand votes.

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[Insert: So then this seems to have happened...
Justice Dept. investigating Trump’s actions as part of Jan. 6 criminal probe
]...]
The first centers on seditious conspiracy and conspiracy to obstruct a government proceeding, the type of charges already filed against individuals who stormed the Capitol on Jan. 6 and on two leaders of far-right groups, Stewart Rhodes and Henry “Enrique” Tarrio, who did not breach the Capitol but were allegedly involved in planning the day’s events.
P - The second involves potential fraud associated with the false-electors scheme or with pressure Trump and his allies allegedly put on the Justice Department and others to falsely claim that the election was rigged and votes were fraudulently cast.
[...]
"In trying to understand how and why Trump partisans and lawyers sought to change the outcome of the election, one person familiar with the probe said, investigators also want to understand, at a minimum, what Trump told his lawyers and senior officials to do. Any investigation surrounding the effort to undo the results of the election must navigate complex issues of First Amendment-protected political activity and when or whether a person’s speech could become part of an alleged conspiracy in support of a coup.
[...]
"The Justice Department inspector general is also an important player in the investigation, as it examines Clark’s role as a department official in allegedly furthering the efforts.
P - In a call on Dec. 27, 2020, witnesses have said, Trump told acting attorney general Jeffrey Rosen that he wanted his Justice Department to say there was significant election fraud, and said he was poised to oust Rosen and replace him with Clark, who was willing to make that assertion.
P - Rosen told Trump that the Justice Department could not “flip a switch and change the election,” according to notes of the conversation cited by the Senate Judiciary Committee.
P - “I don’t expect you to do that,” Trump responded, according to the notes. “Just say the election was corrupt and leave the rest to me and the Republican congressmen.”
P - The president urged Rosen to “just have a press conference.” Rosen refused. “We don’t see that,” he told Trump. “We’re not going to have a press conference.”"
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=169507471]
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Is there any precedent for going after politicians or officeholders for these types of acts?

I’m not familiar with any. The one thing that comes closest, but is probably not even the same, is a guy who was a county auditor in Cleveland who paid his opponent to run against him and deliberately lose. That’s corruption in an election, but a little different from what we’re talking about here.

That makes me wonder whether it is actually hard to prove that these laws were broken.

Well, I don’t know that we have anybody who’s ever tried who has this much power, the way a President does. Maybe it has been attempted at lower levels and I’m just not aware of it. I think part of it is that this is an incredibly audacious scheme, if it is proven. And it requires someone who can marshal the resources and control the levers of government to be able to pull it off the way Trump may have.

But a prosecution would be for violating these broader laws rather than laws related to the functioning of elections specifically?

Yes. The problem is that we get statutes on the books based on what Congress can envision. And I don’t think Congress ever imagined that a President would try to do what Trump is accused of doing. And so we don’t have a specific statute on the books that says, “You can’t pressure the Vice-President to abuse his authority to throw out the electors and substitute false ones,” because I think no one ever imagined that would happen. So, instead, you have things like obstructing an official proceeding or defrauding the United States out of the proper functioning of government. Those would be the closest things that would fit here. And they get used for lots of different things, but nothing like this that I’ve ever heard of.

What would a possible defense look like here? And to what degree would it be specifically about executive power, that the President has wide latitude to conduct office as he sees fit?

A defense that’s used in most white-collar cases would probably be the one used here, which is proving intent. So, Trump said and did a lot of things, but it’s because he genuinely believed he had won the election and he was the one who was trying to stop fraud. He believed Joe Biden was the one who committed fraud and he was just doing everything he was supposed to do to make sure that the will of the people was being effectuated. Maybe he was wrong in the end, but he led from a good place because he believed this was true. So proving this mind-set is really hard. It’s the hardest thing that happens in white-collar cases. It’s the reason so many white-collar perpetrators are not held accountable, because you can’t read a person’s mind.

But there is this concept of willful blindness, where a jury is instructed that a person cannot ignore a high probability that a fact is true just because he wishes it weren’t so. So if there are enough people, as we heard at the first public hearing, telling him, “No, you lost. No, there was no fraud. There was no there there. It was bullshit,” at some point, most rational people are going to believe, O.K., I’m just making this up. There’s no evidence.

Can you talk more about intent? You’re saying that you need to prove some degree of intent, but that there’s also a sense that if you can prove that the person was presented with a certain amount of reasonable information, then intent is not an excuse?

Well, you have to prove intent, and it’s harder in white-collar cases because people are often doing something that is not illegal, per se. If you kill somebody, that’s illegal. But if what you do is paperwork, or you tell somebody something, or you send a message, or you give a speech, it’s not illegal, per se. It’s only illegal if you’re trying to use it to commit fraud, to perpetuate a lie, to get somebody to do something based on a misrepresentation. That’s what makes it a little more difficult. You have to prove that they had that mind-set, that they knew what they were saying was wrong. Even if you don’t have direct evidence for that, which would really require a confession, you can still obtain a conviction because a jury is told that they should look at the totality of the circumstances and draw reasonable inferences based on their own common sense and life experiences.

So if someone tells you a hundred times that the world is round and you think, Geez, the world looks flat to me. At some point, if you continue to deny the world is round, you really know better. You are engaging in willful blindness to say the world is flat, and to sell people things on the basis that the world is flat. A jury can use inference to say, “No, I think she really believed that the world was round. She was just saying it was flat because she could profit from it.”

So none of these defenses would be specifically about executive power, where courts have often given Presidents wide latitude?

I think the speech on the Ellipse is one that hits the closest. The President is on duty 24/7. He gets to do what he wants to do if he believes that he’s doing it as part of the duties as President. What we’ve seen so far is that a judge has ruled that that speech was beyond the scope of his duties, in part because he was acting as Trump the candidate and not Trump the President. But that can be tricky, whether something was in the scope of his employment or not. Nonetheless, a President still isn’t allowed to commit crimes.

We know the Department of Justice is looking at a lot of things that occurred on January 6th. And we’ve also heard that a prosecutor in Georgia is looking at the Georgia angle of this. Would those be two separate cases?

My guess is separate cases. Georgia is a separate sovereign from the United States. And so, if Georgia wants to charge its own case because the citizens of Georgia were victimized by some sort of fraud, then a prosecutor there can bring those charges completely apart from the Justice Department. The Justice Department, though, does have this policy that says that, generally, if a case has been brought in a state and the interests have been vindicated, the Justice Department should not double dip just to repeat a conviction. Now, sometimes a person is acquitted in the state, and so then the federal prosecution will jump in and do its own. Sometimes it is said that even though state rights were vindicated, federal rights were not.

For example, in the Ahmaud Arbery case .. https://www.newyorker.com/news/daily-comment/justice-for-ahmaud-arbery , even after the killers were convicted in state court, the Feds still came in and charged them separately. It does not preclude the federal government from charging its own case, which would I think be a bigger, broader case. But the prosecutor in Georgia does not have to get permission from the Justice Department to do her own thing, because she is part of a separate sovereign.
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I was hoping you could throw a little cold water on all this, because there have been so many examples in the past five years of Trump not actually getting charged. I’m curious what you see as the potential pitfalls here.

I think the public is not aware of just how challenging it is to put together the kind of airtight criminal prosecution that is necessary to be able to prove guilt beyond a reasonable doubt, to a jury of twelve people who must decide unanimously on guilt. Michael Sussmann was just acquitted. In the plot to kidnap Governor Whitmer, they had a hung jury. And I think that, when we read things in the media, we listen to the phone call between Trump and Brad Raffensperger and we say, “Well, there it is. Done, right? We got it.” And there’s so much more to it than that, because you have to show the context. You have to be able to disprove the negative.

Let’s say Trump gets on the stand and says, “Well, I asked him for eleven thousand votes because I believed I earned them. I believed I was asking him to correct a grave injustice to correct the fraud that was being perpetrated.” You have to prove that there was no legitimate claim that he won, and that he knew it. That requires talking to everybody that he talked to who might have given him the bad advice. It’s a big task. And then, even if the Justice Department is convinced that they can obtain and sustain a conviction, that they have sufficient evidence, that is not the end of the inquiry. The next question is whether they should use their discretion to charge because it would advance a substantial federal interest. There’s the legal prong, the “Can we charge?” question. And there’s the discretionary prong, which is the “Should we charge?” question. Even if you think you can, should you charge a former President?

Some of the things they need to think about are: What precedent does this set? Will we become a country where every new President files charges against their predecessor? That’s not good for the country. What kind of distraction is this in a world where we need to pay attention to things like climate change, and a pandemic, and hostile foreign adversaries? If we are spending the next couple of years on this case, is it really in the best interest of the country? Could it result in civil unrest or even civil war? All of those questions need to be answered.

On the other hand, to not hold him accountable, to not file charges, might be even worse because one of the reasons we punish people criminally is to deter them and others from doing it again in the future. And, if you don’t hold them accountable, will people just keep trying to do this?

I know you weren’t really giving your opinion so much as giving the two sides of the argument, but one thing I have felt watching the Department of Justice, watching someone like James Comey, maybe someone like Merrick Garland, is that the desire to be seen as not political ends up manifesting itself in choices that are very political. Making a decision just based on the law is one thing. Making a decision because you’re worried about the precedent this will set if a Republican is elected in 2024, or about what it’s going to signal to foreign adversaries or whatever else—those decisions seem to be very political because they’re not just about, in the prosecutor’s mind, whether there was a crime committed.

Yeah. Discretion is a two-edged sword. The power to use discretion is the power to be fair. The power to use discretion is also the power to discriminate. So you raise a good issue. I would point you to the principles of federal prosecution, which are available online in the Justice Manual. And it talks about the need for the prosecutor to consider all of these things, but it also says certain things the prosecutor may not consider, like the person’s race, religion, or gender. Politics is another one—their political association, political party, the political consequence of all of these things. While they’re thinking about substantial federal interest, they can’t think, Does this favor Republicans or does it favor Democrats? But they can consider what the results would be on the world.

Another thing they think about is protecting the mission of the department and the department’s public trust. If people think that the Justice Department is simply a political actor, then it loses its legitimacy and it makes it harder for people to respect the rule of law. I do think that figures into it a little bit, even though that is a little bit political. “Gee, if we charge them, it’s going to look political, so we better not do it.” Isn’t that itself political? I think so, but it is part of the calculus.

Worrying about foreign adversaries or how this is going to look to the American population is not political in the way that charging someone because they’re a Democrat or Republican is political. But I do think there are political dimensions to it. And my sense is that people of a certain political stripe, probably more establishment people, are more concerned about those things you brought up. Do you have concerns about this?

Yeah. I think that the Justice Department does consider institutional interests and public trust and public perception when it makes these decisions, for better or for worse. But, in the end, the Justice Department has to do what it thinks is right. It can’t shrink from its duty just out of fear that some members of the public will accuse it of playing politics. It’s like if you’re the coach of a baseball team and your kid is the best player, you might be inclined to bench your kid so that everyone will praise you for how fair you are and how you play all the other kids. But, if you bench the best player just because he happens to be your kid, you’re going to lose the game.

Ultimately, you’re there to make the best decisions. And you can’t worry too much about your reputation or your place in history. Janet Reno had a saying about this. She said that, when you’re making these kinds of decisions, you’re damned if you do and you’re damned if you don’t, so you might as well just do the right thing.

When I hear people say things like “Oh, the Justice Department’s going to be seen as political if they go after Trump in this way,” it feels almost like a dispatch from a different era of politics.

That’s an interesting point. Merrick Garland was in the department in the nineties. Although many things have stayed the same, I think the world is a different place. There’s increased scrutiny. There’s far less trust in public institutions. There is 24/7 attention. Everybody’s got a megaphone with social media. There is a difference. The public isn’t just going to trust you because you made the judgment and you’re the Attorney General. They’re going to expect you to back up your decisions and explain your decisions. And I hope he understands how that human need in America has evolved. ?

More on the January 6th Attack

When the Capitol was breached, a New Yorker reporter became the sole journalist in the Senate chamber to witness its desecration ..
https://www.newyorker.com/magazine/2021/01/25/among-the-insurrectionists .

Inside the chamber, Luke Mogelson captured raw, visceral footage of the siege ..
https://www.newyorker.com/news/video-dept/a-reporters-footage-from-inside-the-capitol-siege .

Should Americans refer to the Sixth of January as a protest, an act of treason, or something else ..
https://www.newyorker.com/news/daily-comment/what-should-we-call-the-sixth-of-january ?

What the January 6th papers reveal ..
https://www.newyorker.com/magazine/2022/02/14/what-the-january-6th-papers-reveal .

How a mother of eight became one of the riot’s biggest mysteries, and a fugitive from the F.B.I ..
https://www.newyorker.com/news/news-desk/a-pennsylvania-mothers-path-to-insurrection-capitol-riot .

The violence was what Donald Trump wanted ..
https://www.newyorker.com/news/our-columnists/this-violent-insurrection-is-what-trump-wanted .

If America is to remain a democracy, Trump must be held accountable ..
https://www.newyorker.com/news/our-columnists/the-importance-of-holding-trump-accountable-for-the-capitol-hill-insurrection.

saac Chotiner is a staff writer at The New Yorker, where he is the principal contributor to Q. & A.,
a series of interviews with public figures in politics, media, books, business, technology, and more.

https://www.newyorker.com/news/q-and-a/the-two-pronged-test-that-could-put-trump-in-prison

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What We Do and Don’t Know About the FBI’s Mar-a-Lago Search

Also from the Lawfare blog, "Cassidy Hutchinson’s Testimony Changed Our Minds About Indicting Donald Trump"

Whew. This is long and repeats much already on the board, still it does get much together. And does have some new stuff.

By Scott R. Anderson, Matt Gluck, Quinta Jurecic, Tyler McBrien, Natalie K. Orpett,
Katherine Pompilio, Alan Z. Rozenshtein, Tia Sewell, Benjamin Wittes

Tuesday, August 9, 2022, 6:03 PM


Marine One at Mar-a-Lago (https://wordpress.org/openverse/image/7ababeae-cc66-495e-8069-10b6f622dae6)

The FBI’s surprise search of former President Trump’s residence has raised unanswered questions and engendered wide speculation. Here is a guide for the perplexed.

What do we know about the law enforcement activity on Monday at Mar-a-Lago?

On Aug. 8, federal agents searched former President Donald Trump’s Mar-a-Lago property in Palm Beach, Florida. Trump, who was in New York at the time, released .. https://www.reuters.com/world/us/trump-says-fbi-agents-raided-his-florida-home-2022-08-08/ .. a statement calling the search an “unannounced raid” involving a “large group of FBI agents” and noting that the agents “broke into” his safe. Trump did not say why the search occurred, and the Justice Department and the FBI, both at headquarters in Washington, D.C., and at the Miami field office, have so far declined to comment.

The Secret Service was reportedly notified .. https://www.nbcnews.com/politics/donald-trump/trump-says-mar-lago-home-was-raided-large-group-fbi-agents-rcna42133 .. several hours before the warrant was served around 10:00 a.m. .. https://www.bbc.com/news/world-us-canada-62472908 .. local time, and Trump’s security detail assisted the investigators by facilitating access to the property. The search reportedly lasted most of the day, concluding .. .https://www.bbc.com/news/world-us-canada-62472908 .. by late afternoon. The federal agents appeared to focus their search on the area of Mar-a-Lago in which Trump’s offices and personal quarters are located, according .. https://www.cnn.com/2022/08/08/politics/mar-a-lago-search-warrant-fbi-donald-trump/index.html .. to CNN.

In order to get court authorization for the search warrant, federal investigators would have needed to demonstrate that there was probable cause to believe that a crime had been committed and that evidence of the crime could be found at the former president’s Florida estate.

Eric Trump told Fox News that the search was conducted .. https://www.reuters.com/world/us/trump-says-fbi-agents-raided-his-florida-home-2022-08-08/ .. as part of an investigation of boxes of documents sought by the National Archives, and multiple people familiar with the matter told news outlets .. https://www.cnn.com/2022/08/08/politics/mar-a-lago-search-warrant-fbi-donald-trump/index.html .. that the investigation dealt with Trump’s alleged removal of classified documents from the White House. Trump lawyer Christina Bobb confirmed .. https://www.cnn.com/2022/08/08/politics/mar-a-lago-search-warrant-fbi-donald-trump/index.html .. that the bureau seized documents during the search.

A White House official said that the White House did not receive notice of the search in advance, and a senior administration official told .. https://www.cnn.com/2022/08/08/politics/mar-a-lago-search-warrant-fbi-donald-trump/index.html .. CNN that President Biden was unaware of any law enforcement activity at Mar-a-Lago before the news surfaced publicly.

Is this a big deal?

Yes.

A warrant requires probable cause that criminal activity has taken place or is taking place. Any time the government is willing to go before a federal court and persuade a judge that criminal activity justifies a search of the former president’s residence, it’s a very big deal. It’s such a big deal, in fact, that it has never happened before.

The problem is that, right now, we don’t know what kind of big deal it is. We actually don’t even know for sure whether the investigation is focused on the behavior of Trump himself, though it’s a reasonable assumption that it is.

What do we know about the investigation that led to this search warrant?

Little information is public, but the Washington Post first reported .. https://www.washingtonpost.com/politics/2022/02/07/trump-records-mar-a-lago/ .. that the National Archives retrieved .. https://www.cbsnews.com/news/trump-records-national-archives-mar-a-lago/ .. a tranche of documents from Trump’s Mar-a-Lago home in January 2022. In February, the Archives announced .. https://www.usatoday.com/story/news/politics/2022/02/18/trump-classified-documents-white-house/6849443001/ .. that it had “identified items marked as classified national security information within the boxes” that Trump stored at the property. And in April, the Post .. https://www.washingtonpost.com/politics/2022/04/07/trump-boxes-archives-investigation-maralago/ .. and the New York Times .. https://www.nytimes.com/2022/04/07/us/trump-classified-information.html .. reported that the Justice Department had begun investigating how boxes of classified documents improperly .. https://www.lawfareblog.com/what-rules-apply-government-records-during-presidential-transition .. made their way from the White House to Mar-a-Lago after the end of the Trump presidency.

The Post first reported .. https://www.washingtonpost.com/politics/2022/02/07/trump-records-mar-a-lago/ .. that the Archives had taken 15 boxes of documents from Mar-a-Lago in February. According to the paper, “Trump advisers deny any nefarious intent and said the boxes contained mementos, gifts, letters from world leaders and other correspondence,” including “correspondence with North Korean leader Kim Jong Un” and “a letter left for Trump by President Barack Obama.” In May, retiring archivist of the United States David Ferriero would recall to the Post .. https://www.washingtonpost.com/history/2022/05/11/archives-retires-jan-6-ferriero-mob/ .. how the Archives began its probe into missing documents:

---
Regarding the material Trump took to Florida, Ferriero said he was told by the White House Office of Records Management about a group of boxes in the White House residence that should go to the Archives.

“As we were moving materials from the White House just before the inauguration, those boxes hadn’t shown up yet,” he said.

“I can remember watching the Trumps leaving the White House and getting off in the helicopter that day, and someone carrying a white banker box, and saying to myself, ‘What the hell’s in that box?’” he said.

“That began a whole process of trying to determine” whether any records had not been turned over to the Archives, he said.

Asked if he eventually got all those records, he said: “Don’t know. This is still under investigation.”
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The Post wrote .. https://www.washingtonpost.com/politics/2022/02/12/trump-15-boxes/ .. in February that the Archives faced significant difficulties in obtaining the documents from Mar-a-Lago, reporting that “[a]t one point, Archives officials threatened that if Trump’s team did not voluntarily produce the materials, they would send a letter to Congress or the Justice Department revealing the lack of cooperation.”

Mishandling of such records can create potential criminal liability .. https://www.lawfareblog.com/trumps-presidential-records-act-violations-short-and-long-term-solutions .. under the Presidential Records Act and the Federal Records Act. At first, the Post quoted .. https://www.washingtonpost.com/politics/2022/02/07/trump-records-mar-a-lago/ .. legal experts saying that criminal prosecution for violation of federal records laws seemed “unlikely.” Soon, though, the paper uncovered .. https://www.washingtonpost.com/politics/2022/02/10/trump-records-classified/ .. that the boxes from Mar-a-Lago contained “clearly marked classified documents”—a development that raised questions over possible violation .. https://www.lawfareblog.com/law-classified-information-primer .. of statutes criminalizing mishandling of classified information. According to the Post, among the documents obtained .. https://www.washingtonpost.com/politics/2022/02/25/trump-oversight-records/ .. from Mar-a-Lago were some classified in the most sensitive category of “Top Secret,” including some apparently marked to further restrict access within an even smaller group of approved officials.

According to the Post, officials from the Archives “asked the Justice Department to look into the matter.” House Committee on Oversight and Reform Chair Rep. Carolyn Maloney, D-N.Y.—who had announced .. https://oversight.house.gov/news/press-releases/oversight-committee-launches-investigation-into-former-president-trump-s-white .. that her committee would be investigating Trump’s handling of documents after the Post’s first story broke—soon declared that the Oversight Committee was expanding the investigation .. https://oversight.house.gov/news/press-releases/oversight-committee-expands-investigation-into-former-president-trump-s .. in response to new information provided by the Archives that, according to Maloney, “identified significant potential violations of the Presidential Records Act and other federal laws governing the preservation of federal records.”

By May, the Post .. https://www.washingtonpost.com/national-security/2022/05/12/mar-a-lago-documents-grand-jury/ .. and the Times .. https://www.nytimes.com/2022/05/12/us/politics/justice-department-trump-classified.html .. reported that prosecutors had issued a grand jury subpoena to obtain the documents in question from the Archives and had begun to reach out to former Trump White House aides to conduct interviews—a sign that the Justice Department investigation was moving forward.

Did Attorney General Merrick Garland personally approve this action?

Almost certainly.

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INSERT video

AG Garland Says He ‘Personally Approved’ Decision To Seek Search Warrant For Mar-a-Lago

33,517 views Aug 12, 2022

NBC News
Attorney General Merrick Garland spoke for the first time since the FBI searched former President Donald Trump’s Mar-a-Lago residence. Garland said he “personally approved” the decision to seek a search warrant and he condemned violence against FBI in the wake of the search.
https://www.youtube.com/watch?v=34jxnKxhACE
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On Feb. 5, 2020, then-Attorney General William Barr promulgated a new policy .. https://docs.house.gov/meetings/JU/JU00/20200624/110836/HHRG-116-JU00-20200624-SD009-U19.pdf .. regarding the opening of investigations of presidential or vice presidential candidates. This policy set forth several requirements for opening or initiating any such investigation—including a rule that the attorney general, through the deputy attorney general, provide personal written approval, and that the investigation cannot be opened without notification to and consultation with the assistant attorneys general and U.S. attorneys with jurisdiction over the issue in question. Garland made clear that this policy was still in force in a memo in May of this year.

[Insert: ...No investigation into a presidential or vice-presidential candidate — or their senior campaign staff or advisers — can begin without written notification to the Justice Department and the written approval of Mr. Barr.
P - Point? The AG has the final approval and Barr is not the AG any longer. I don't think one can properly infer that more than a year out from a GOP primary campaign that Garland would uphold the Barr rule.
P - But in recent days, Mr. Garland has repeatedly asserted his right to investigate or prosecute anybody, including Mr. Trump, provided that is where the evidence leads.
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=169507635]

It’s not clear that the Barr policy applies to this situation: Trump is not yet a declared candidate, and a search warrant within a preexisting investigation is not the same as the opening of a fresh investigation. But if policy requires the attorney general to pay personal attention to the opening of an investigation against even minor presidential candidates and their senior advisers and staff, then surely he is also likely to pay personal attention to the execution of a search warrant against a former president, particularly one who has been hinting .. https://nymag.com/intelligencer/article/donald-trump-2024-decision.html .. that he intends to run for president again.

Assume, in other words, that the attorney general, Deputy Attorney General Lisa Monaco, and FBI Director Christopher Wray were all personally involved in the decision to go forward.

Do we know what this warrant was for?

Not with any certainty.

It’s not clear why the dispute over Trump’s retention of these records is being treated as a criminal matter, rather than a set of administrative errors.

Nor is it clear what sort of information the FBI was seeking or what sort of information it has seized.

One possibility is that the purpose of the seizure was not to gather evidence for a criminal prosecution but simply to recover material of particular sensitivity.

That said, we don’t know for sure that the search was limited to material related to the classified records dispute. The activities of the Trump White House and the entourage .. https://www.lawfareblog.com/dissecting-justice-departments-prosecutorial-decisions-navarro-meadows-and-scavino-0 .. around the former president in the wake of the 2020 election, after all, are also .. https://www.lawfareblog.com/now-will-justice-department-investigate-trump .. the subject of Justice Department investigations .. https://www.lawfareblog.com/justice-department-meeting-moment . And while the Mar-a-Lago search appears to be connected to the classified materials matter, the parameters of the search and the investigation that spawned it are not public—nor do we know if the investigations are in any way related to one another.

As of the afternoon of Tuesday, Aug. 9, the New York Times reported .. https://www.nytimes.com/2022/08/09/us/trump-fbi-jan-6.html .. that “[t]he F.B.I.’s search of former President Donald J. Trump’s home on Monday to obtain information related to his handling of classified information is separate from the Justice Department’s investigation into the Capitol attack on Jan. 6, 2021, according to multiple people familiar with the investigation.” But it wouldn’t be improper for agents, once in the president’s residence, to have collected evidence in plain view related to crimes other than the mishandling of classified material.

How could Trump’s retention of these classified documents have yielded this search warrant?

This is a bit of a mystery at this stage, assuming the search really stemmed from the classified material dispute. Normally, mishandling classified material, in the absence of a suspicion of espionage or willful leaking, is treated as an administrative matter. To elevate a dispute between a former president and the National Archives over the retention of classified material to a matter of court-authorized search and seizure, there is very likely a significant additional factor at issue. One possibility, as mentioned above, is that the additional factor is the sheer sensitivity of the material and the urgent need to recover it. But there are other possibilities too.

We don’t want to speculate about what these other factors might be, but here is how then-FBI Director James Comey characterized Justice Department policy and practice .. https://www.fbi.gov/news/press-releases/press-releases/statement-by-fbi-director-james-b-comey-on-the-investigation-of-secretary-hillary-clinton2019s-use-of-a-personal-e-mail-system .. on the point when he announced that the FBI was closing its investigation of Hillary Clinton’s private email server:

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Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. (Emphasis added.)
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It is hard to imagine that the Justice Department would have relaxed these standards in a matter involving a former president.

What’s the process for an FBI action like this?

The typical process to obtain a search warrant is for a law enforcement official—here an FBI agent—to swear an affidavit before a magistrate judge establishing probable cause that evidence of a crime was located at the place to be searched—in this case, Trump’s Mar-a-Lago resort. Because Mar-a-Lago is located in Palm Beach, Florida, the investigation is likely being conducted by the U.S. Attorney’s Office for the Southern District of Florida and the FBI’s Miami field office. However, to take an investigative step of this magnitude, as we discussed above, it is almost certain that top FBI and Justice Department leadership—up to and including Wray and Garland—were aware, and most likely approved, of the warrant application and execution.

[Which we now they were.]

Although the FBI would be limited to seizing only those items specifically listed in the warrant—and for which it had demonstrated probable cause—these lists tend to be written broadly, and courts give substantial deference to law enforcement when it comes to determining what items fall under the warrant’s scope. Where law enforcement anticipates that some of the information seized might be attorney-client information or otherwise privileged, they will often send in a “taint team”—a group of dedicated agents, separate from the main investigative team, who will first segregate any potentially privileged information before providing the rest to the main investigative team. According to the Miami Herald .. https://www.miamiherald.com/news/politics-government/state-politics/article264310461.html , this appears to have been done in the search of Mar-a-Lago.

It is telling that the FBI sought a search warrant rather than relying on a grand jury subpoena for the documents in question. Subpoenas are typically used when the bureau has reason to trust that the recipient will hand over the information in question rather than obfuscating or destroying it. One possibility, raised by former Mueller prosecutor Andrew Weissmann, is that the bureau and the Justice Department “could not be confident that the former President of the United States would comply with a grand jury subpoena.” Another possibility, assuming this was an effort to recover classified material, is that the bureau proceeded by search warrant because that is standard practice when attempting to recover spilled classified material.

What’s in the warrant?

We don’t know.

When federal agents depart the location they have searched, they leave .. https://mobile.twitter.com/Popehat/status/1556780703647354880 .. the warrant authorizing their search. The warrant is a form that describes only where law enforcement authorities were authorized to search, what they were authorized to search for, and which federal laws may have been violated. The agents do not leave the warrant application, which details the investigation and the relevant evidence that led to and justified obtaining the search warrant.

So a warrant could potentially tell us a great deal about what crimes the Justice Department thinks may have been committed—including whether the search might touch on matters outside the issue of handling of classified information. But although agents would be required to leave the warrant behind, the public would not .. https://mobile.twitter.com/Popehat/status/1556780703647354880 .. get access to the warrant unless someone leaks or releases it. According to federal records guru Seamus Hughes .. https://twitter.com/SeamusHughes/status/1556800148679925761 , the deputy director of George Washington University’s Program on Extremism, the U.S. District Court for the Southern District of Florida—where a warrant to search Trump’s Mar-a-Lago property would have been filed—does not publicly file search warrants in the absence of a motion from the Justice Department to unseal the warrant. There is no indication that the Justice Department has yet filed a motion to unseal the warrant or that it will do so.

[How agents get warrants like the one used at Mar-a-Lago, and what they mean
The court-authorized search was reportedly about key White House
documents that had not been returned. Here’s what you need to know.
By Perry Stein August 11, 2022 at 12:00 p.m. EDT
[...]
Can the public see the warrant?
[...]On Wednesday, a U.S. magistrate judge gave federal prosecutors until 5 p.m. Monday to respond to a request by the Albany Times Union and other news organizations to unseal the search warrant.
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=169657257]

Is it plausible that the White House really didn’t know about this action before it happened?

It is.

CBS News White House Correspondent Ed O’Keefe has reported .. https://twitter.com/edokeefe/status/1556790991570538496 .. that the White House did not have advance knowledge of the search. And this would be consistent with policy as articulated both by the White House and by the Justice Department. Both Biden and Garland have said publicly that the White House is not getting involved in investigative matters at the Justice Department. Biden has said .. https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/10/22/remarks-by-president-biden-in-a-cnn-town-hall-with-anderson-cooper-2/ , “I did not, have not and will not pick up the phone and call the attorney general and tell him what he should or should not do in terms of who he should prosecute.” Garland has put it this way: “I am not the President’s lawyer.”

Moreover, in July 2021 Garland promulgated a policy .. https://www.justice.gov/ag/page/file/1413766/download .. regulating contacts between the White House and the Justice Department, stating that “the Justice Department will not advise the White House concerning pending or contemplated criminal or civil law enforcement investigations or cases unless doing so is important for the performance of the President's duties and appropriate from a law enforcement perspective.” Then-White House Counsel Dana Remus issued ... https://www.documentcloud.org/documents/21014467-remusagencycontactsmemo072121 .. a parallel memo announcing that “outside of the national security context … and absent rare and exceptional circumstances, White House personnel will not discuss specific pending criminal or affirmative civil investigations or cases with DOJ.”

Those policies do allow for some leeway, as the national security qualifier indicates. But it’s entirely consistent with the spirit of both policies, and of Garland’s and Biden’s public statements on the matter, for the Justice Department to have kept this walled off from the White House.

Does this mean that Donald Trump is about to be indicted?

Not necessarily. Search warrants proceed on a lower standard of evidence, probable cause, than the standard required for convictions: proof beyond a reasonable doubt.

While execution of a search warrant is evidence that an investigation has proceeded to a certain level of seriousness, the distance between that point and the point of indictment is nonetheless significant. What’s more, in this case, recovering the material may have been the primary objective with prosecution less important.

Even if that’s not the case, it is relatively common for investigations that have generated court-authorized searches to nonetheless peter out. For a recent example, consider the high-profile investigation of Trump’s lawyer, Rudy Giuliani, into his various alleged activities in Ukraine—including his effort to dig up damaging information about President Biden and his son, Hunter. In April 2021, federal agents executed .. https://www.nytimes.com/2021/04/28/nyregion/rudy-giuliani-trump-ukraine-warrant.html .. a search warrant at Giuliani’s New York City apartment, seizing his cell phones and computers. However, the New York Times recently reported .. https://www.nytimes.com/2022/08/03/us/giuliani-charges-lobbying-inquiry-trump.html .. that the investigation is heading toward a resolution without charges.

What’s more, it’s not even 100 percent clear that Trump himself is the principal target of this investigation, though it does seem likely. It is possible, after all, that the investigation is focused on some underling close to Trump, not on the former president himself.

So there are still a number of ways this investigation could yield outcomes other than Trump’s prosecution.

At the same time, the execution of such a high-profile search warrant is the biggest piece of evidence to date of the Justice Department’s willingness in principle to prosecute Trump. Garland and his colleagues must have anticipated the enormous political blowback that they personally, and the department generally, would receive from Trump’s political allies. While an indictment would be even more controversial, the execution of a search warrant is enough to be considered a Rubicon-crossing step by Trump’s supporters (as demonstrated by the increasingly .. https://twitter.com/marcorubio/status/1556794178792824832 .. unhinged .. https://thehill.com/policy/national-security/3593582-mccarthy-threatens-to-probe-garland-after-trump-fbi-raid/ .. rhetoric .. https://www.msnbc.com/rachel-maddow-show/maddowblog/georgias-greene-wants-defund-fbi-mar-lago-search-rcna42210 .. of many GOP politicians). In other words, the marginal political cost of indicting Trump over and above searching his residence is unlikely to be the margin at which the department’s decision-making is occurring. Suffice it to say that the search at Mar-a-Lago goes a long way to addressing questions about Garland’s willingness to prosecute Trump, assuming the legal and factual sufficiency of the case.

[Well it could be said to go a long way to signal Garland's willingness to charge Trump. Then again, since an indictment is a much bigger step the warrant could also be seen by the most skeptical of Garland as a Garland feint.]

What is 18 U.S.C. § 2071, and can it disqualify President Trump from future public office?

If former President Trump is being investigated for improperly removing or destroying federal records that were in his custody, then one criminal provision that is likely to be implicated is 18 U.S.C. § 2071(b) .. https://casetext.com/statute/united-states-code/title-18-crimes-and-criminal-procedure/part-i-crimes/chapter-101-records-and-reports/section-2071-concealment-removal-or-mutilation-generally , which makes such removal or destruction a crime punishable by up to three years in prison. Section 2071(b) also takes the unusual step of requiring that individuals who violate it “shall … be disqualified from holding any office under the United States.”

Some observers have posited .. https://twitter.com/marceelias/status/1556794749377454080?s=20&t=iexDLeYS61OuOd6lOZ2eyA .. that being convicted of violating § 2071(b) may thus disqualify former President Trump from holding the presidency again in the future.

For better or worse, this assessment is likely wrong.

Article II of the Constitution lays out a specific set of qualifications .. https://constitution.congress.gov/browse/essay/artII-S1-C5-1/ALDE_00001124/ .. that individuals must meet to hold the office of president, namely that they be “natural born Citizen[s]” of the United States, at least 35 years old, and have been residents of the United States for at least 14 years. Other parts of the Constitution set out similar lists of qualifications for certain other public offices, including seats in the House and Senate.

The Supreme Court has treated these lists of qualifications for House and Senate seats as exclusive, and has specifically held that state legislatures cannot add additional grounds for disqualification through legislation .. https://casetext.com/case/us-terms-limits-inc-v-thornton .. and that Congress cannot disqualify members-elect on other grounds .. https://casetext.com/case/powell-v-cormack . The Court has never squarely addressed whether this same logic applies to the qualifications for the presidency or prohibits Congress from adding to them through statute. But as Seth Barrett Tillman has usefully documented .. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2650328 , both lower courts and legal scholars have generally assumed that it does. If correct, this means that § 2071(b) cannot disqualify individuals from holding the presidency for violating it, as doing so would be an unconstitutional expansion of the qualifications already set out in the Constitution. Plaintiffs may still try to challenge Trump’s eligibility for the presidency if he is convicted of violating § 2071(b). But the weight of legal opinion suggests these challenges are likely to lose.

Notably, this isn’t the first time in recent memory that this issue has come up. As Charlie Savage has written in the New York Times .. https://www.nytimes.com/2022/08/08/us/politics/donald-trump-president-criminal-law.html , a number of prominent Republican lawyers, including former Attorney General Michael Mukasey, suggested that Hillary Clinton’s alleged mismanagement of her emails while secretary of state could be in violation of 18 U.S.C. § 2071 and thus disqualify her from running for president in the lead-up to the 2016 election. Legal scholars swiftly swooped in to point out the issues with this argument. Mukasey ultimately conceded that § 2071(b) likely cannot disqualify anyone from serving as president.

https://www.lawfareblog.com/what-we-do-and-dont-know-about-fbis-mar-lago-search

[spartex]

Admittedly, Hutchinson is only one witness, and it is true that some of her testimony would, in the context of a criminal trial, constitute hearsay

you folks live in a world of conspiracy. enjoy your altered state of reality.

Looks like you are going to have Donald on your plate for the next 6 months + 4 years as the next President. You'll need to be patient or you may get carpel tunnel syndrome from posting too much EOM