This post combines two articles from WaPo, one published in December, the other just today. I don't like these articles. First, because it makes the FBI look like pussies in this case and reading carefully I don't think that they were. The flip side is that it makes DOJ lawyers look like rabid prosecutors who missed the motive forest and got lost in the trees, and on the evidence in both articles combined I think the FBI was right and DOJ wrong. Hear me out.
When the MAL search broke Ross Douthat wrote a piece distinguishing two scenarios: One, Trump sold the docs or gave them to the Saudis, the example Douthat used. Bad, bad, bad. In that scenario, fucking prosecute Trump after you execute him. The second though was Trump being Trump, if there was no harm there's no foul.
I think I took exception to Douthat's dichotomy, I'm not positive but I think I did. I know eventually I took exception to the dichotomy. I read the fucking laws, including at least one case, I read George Conway's tweets and columns in WaPo and these statutes were, and were interpreted by the case, to be as close to strict liability as you can get in criminal statutes. In fact...I remember now, it was specifically, not by George, by someone else, analogized to having child porn on your 'puter. If you got it and it's your computer you're dead.
Now, these articles and "further developments" paint a substantially different picture. First, they dilate on intent. The articles mis-identify intent as motive, which prosecutors never have to prove, but INTENT, they do! In the MAL case the disagreement between FBI and DOJ was over Trump's intent. Did he harm national security by having the docs at MAL or did he have future intent to harm, or did he not? Precisely Douthat's dichotomy. As you read in these articles, and as previously reported, Trump did not harm national security and had no intent to harm national security: "As best as investigators were able to determine" it was just Trump being an asshole.
Now, "further developments": I was really 100% convinced by George and the child porn lawyer and the statutes that this was the criminal law's Pottery Barn Rule, I think I even used the phrase. But now, Biden when he was veep, Pence when he was veep and it looks like it's not the Pottery Barn rule and being an asshole really does matter (it shouldn't). If the intent was not to harm national security (and if no harm was in fact done) then it's sorta no harm no foul.
To me, reading these articles closely (I may still be wrong) the FBI lost the battle but won the war: The surprise search either should not have been conducted or has been conducted in prosecutorial vain because no intent to harm national security, as the FBI argued, was shown before the search or since.
On the day he became attorney general, Merrick Garland inherited a massive investigation into the pro-Trump riot at the U.S. Capitol on Jan. 6, 2021, which threatened the peaceful transition of power to Joe Biden. Prosecutors were working from the bottom up to see if a criminal case could be made against high-profile people such as Trump over the insurrection or the attempt to sabotage the certification of election results.
The Mar-a-Lago case was very different. There was no ladder for investigators to climb, because the potential target was plainly Trump...
...the Justice Department’s decisions about the Mar-a-Lago case put the agency more directly on a collision course with Trump.
...
Agents questioned why it mattered who had which pieces of paper, since presumably any White House documents existed in multiple copies, and probably on computers. Archives officials stressed that while backup copies were helpful, the original documents, including handwritten notes, were essential to following the law on preserving presidential records.
It took several days of phone calls, but gradually the FBI officials came to see one particular set of documents, the Kim letters, as persuasive evidence of a problem; there are obvious national security implications if direct communications from foreign leaders are lost or wrongly circulated.
Agents were also convinced that it mattered if there were sensitive government documents in the boxes, including what one person described as information classified under the Atomic Energy Act, which covers secrets related to nuclear weapons. Some of the paperwork in the boxes was designated as formerly restricted data — a clunky bureaucratic term that also describes secrets related to nuclear matters. Even though the label contains the word “formerly,” such information is still classified.
...
That was a key distinction. Trump has claimed he could declassify things at will — “even by thinking about it. ... There doesn’t have to be a process, as I understand it.” Many national security lawyers have publicly disputed that claim. But while a president does have the power to carry out a declassification process for certain documents, the situation is different for material covered by the AEA. Declassifying such documents requires formal approval from other parts of the government.
...
In mid-May, FBI agents finally reviewed the boxes sent to the Archives and confirmed the agency’s findings: They contained 184 classified documents — more than 700 total pages worth of secrets.
So the FBI dove in, if only to control a leak or “spillage” of classified material and get the sensitive papers back under government lock and key....
Agents discreetly interviewed Trump employees, and those conversations only raised more alarms that the former president was, incredibly, still trying to hold onto classified documents and mislead the government.
...
...there were signs that Trump’s team might be concealing something. When [DOJ lead prosecutor Jay] Bratt’s team visited the basement storage room where many of Trump’s White House boxes were kept, they were not allowed to open the containers and look inside, according to court papers.
... Separately, the Justice Department and FBI were discovering incriminating evidence that Trump or those around him might be actively trying to hide and hold onto additional classified documents.
...
Agents had interviewed Walt Nauta, a former White House valet who followed Trump to Florida to continue working for him. Nauta told the agents when first approached that he knew nothing about classified documents...But the more people the FBI spoke to, the more they doubted that claim.When agents interviewed Nauta a second time, he told [them] that he’d moved boxes from the storage room to Trump’s residence, after the subpoena was served, and that he’d done so at Trump’s request, according to people familiar with the matter.
With Nauta’s account, the investigation that had sputtered to life months earlier started barreling forward, gathering evidence and momentum, according to people familiar with the case.
...
Over many weeks of discussions, senior FBI officials made clear that they would do a search only if it was authorized by the attorney general himself. ...
...here were...tensions at that time between the Justice Department’s national security prosecution team, which was led by Matthew Olsen, and some agents at the FBI’s Washington Field Office, which was led at the time by Steven D’Antuono. The lawyers, these people said, felt they had amassed more than enough probable cause to ask a judge to approve a search of Mar-a-Lago. Some agents at the field office weren’t certain. Eventually, the Justice Department lawyers prevailed.
...
A review of the seized classified documents did not reveal an apparent financial motive for taking them. As best as investigators were able to determine in the months following the search, Trump’s motive in refusing to return the material seemed to be primarily ego, and petulance...
Showdown before the raid: FBI agents and prosecutors argued over Trump
... tense showdown near the end of July last year...
Prosecutors argued that new evidence suggested Trump was knowingly concealing secret documents at his Palm Beach, Fla., home and urged the FBI to conduct a surprise raid at the property. But two senior FBI officials who would be in charge of leading the search resisted the plan as too combative and proposed instead to seek Trump’s permission to search his property...
...
Starting in May, FBI agents in the Washington field office had sought to slow the probe, urging caution given its extraordinary sensitivity, the people said.
Some of those field agents wanted to shutter the criminal investigation altogether in early June, after Trump’s legal team asserted a diligent search had been conducted and all classified records had been turned over, according to some people with knowledge of the discussions.
...
The FBI agents’ caution also was rooted in the fact that mistakes in prior probes of Hillary Clinton and Trump...
A collision course
...
Archives officials reported that, after they had pleaded with Trump’s representatives for months, the former president had in January returned 15 boxes of government records he had stored at Mar-a-Lago since his presidency ended. Sifting through the boxes’ contents, archivists were shocked by what they found: 184 classified documents consisting of 700 pages. Archives officials said they had reason to believe Trump still had more sensitive or classified documents he took from the White House.
Prosecutors in the Justice Department’s national security division needed to answer two immediate questions: Was national security damaged by classified records being kept at Trump’s Florida club, and were any more sensitive records still in Trump’s possession?
Prosecutors and FBI agents were set on a collision course in April, when Trump through his lawyers tried to block the FBI from reviewing the classified records the Archives found. That set off alarm bells for prosecutors because it signaled he might be seeking to hide something...
The prosecutors and FBI agents began clashing...in early May... Jay Bratt, the prosecutor leading the department’s counterespionage work, advocated seeking a judge’s warrant for an unannounced search at the property to quickly recover any sensitive documents still there.
...
...FBI agents viewed a Mar-a-Lago search in May as premature and combative, especially given that it involved raiding the home of a former president. That spring, top officials at FBI headquarters met with prosecutors to review the strength of evidence that could be used to justify a surprise search...
Encountering resistance, ...Bratt and a small number of FBI agents visited Mar-a-Lago to meet with Trump’s lawyer and collect any classified records the Trump team had found to comply with the subpoena. ...
Some FBI field agents then argued to prosecutors that they were inclined to believe Trump and his team had delivered everything the government sought to protect and said the bureau should close down its criminal investigation...
But...national security prosecutors pushed back and instead urged FBI agents to gather more evidence by conducting follow-up interviews with witnesses and obtaining Mar-a-Lago surveillance video from the Trump Organization.
...surveillance video footage...showed someone moving boxes from the area where records had been stored, not long after Trump was put on notice to return all such records, according to people familiar with the probe. That evidence suggested it was likely more classified records remained at Mar-a-Lago...
By mid-July, the prosecutors were eager for the FBI to scour the premises of Mar-a-Lago. They argued that the probable cause for a search warrant was more than solid, and the likelihood of finding classified records and evidence of obstruction was high...
But the prosecutors learned FBI agents were still loath to conduct a surprise search. ...
A rift within the FBI
...Bratt and other senior national security prosecutors, including Assistant Attorney General Matt Olsen and George Toscas, a top counterintelligence official, met about a week before the Aug. 8 raid with FBI agents on their turf, inside an FBI conference room.
The prosecutors brought with them a draft search warrant and argued that the FBI had no other choice but to search Mar-a-Lago as soon as practically possible, according to people with knowledge of the meeting. Prosecutors said the search was the only safe way to recover an untold number of sensitive government records...
...Steven M. D’Antuono, then the head of the FBI Washington field office, which was running the investigation, was adamant the FBI should not do a surprise search...
D’Antuono said he would agree to lead such a raid only if he were ordered to...D’Antuono...repeatedly urged that the FBI instead seek to persuade [Trump lawyer Evan] Corcoran to agree to a consensual search of the property...
Tempers ran high in the meeting. Bratt raised his voice at times and stressed to the FBI agents that the time for trusting Trump and his lawyer was over, some of the people said. He reminded them of the new footage suggesting Trump or his aides could be concealing classified records at the Florida club.
D’Antuono and some fellow FBI officials complained how bad it would look...The FBI’s top counterintelligence official, Alan E. Kohler Jr., then asked the senior FBI agents to consider how bad it would look if the FBI chose not to act and government secrets were hidden at Mar-a-Lago...
[THAT IS NOT THE ISSUE! TRUMP'S INTENT IS THE ISSUE.]
D’Antuono also questioned why the search would target presidential records as well as classified records, particularly because the May subpoena had only sought the latter.
“We are not the presidential records police,” D’Antuono said, according to people familiar with the exchange.
Later, D’Antuono asked if Trump was officially the subject of the criminal investigation.
“What does that matter?” Bratt replied, according to the people. Bratt said the most important fact was that highly sensitive government records probably remained at Mar-a-Lago and could be destroyed or spirited away if the FBI did not recover them soon.
[There is no "probable cause" in "could be." "Could be" is not "did", or probably would be in future. WHAT WAS THE PROBABLE CAUSE FOR INTENT TO HARM NATIONAL SECURITY? THEY HAD NONE!]
FBI agents on the case worried the prosecutors were being overly aggressive. They found it worrisome, too, that Bratt did not seem to think it mattered whether Trump was the official subject of the probe. They feared any of these features might not stand up to scrutiny if an inspector general or congressional committee chose to retrace the investigators’ steps, according to the people.
Jason Jones, the FBI’s general counsel who is considered a confidant of FBI Director Christopher A. Wray, agreed the team had sufficient probable cause to justify a search warrant. D’Antuono agreed, too, but said they should still try to persuade Corcoran to let them search without a warrant, the people said.
[Now, on this point, I side with DOJ: If a fucking judge signs a WARRANT that's the end of "should we or shouldn't we"; and they got a warrant. Time for debate is over. Time to just do it.]
The disagreement over seeking Corcoran’s consent centered partly on how each side viewed Trump’s lawyer. The prosecutors — as well as some officials at FBI headquarters — were highly suspicious of him and feared that appealing to Corcoran risked that word would spread through Trump’s circle, giving the former president or his associates time to hide or destroy evidence, according to people familiar with the internal debate.
[By GLARING implication, NOT time to give them to North Korea or sell them to the Saudis.]
...
Prosecutors remained somewhat on guard until the day of the raid, as they continued to hear rumblings of dissent from the Washington field office, according to three people familiar with the case. Some of the people said prosecutors heard some FBI agents wanted to call Corcoran once they arrived at Mar-a-Lago and wait for him to fly down to join them in the search; prosecutors said that would not work.
...
On Aug. 8, FBI agents scoured Trump’s residence, office and storage areas, and left with more than 100 classified records, 18 of them top-secret. Prosecutors claimed vindication in the trove of bright color-coded folders that agents recovered.
[It wasn't there vindication. They hadn't proved Trump's intent to harm national security. Months later that intent has been disproved.]
