During the hearing to determine if any of the documents used to get a warrant to raid Donald Trump’s Mar-a-Lago home, prosecutors told the judge that the investigation was in its “early stages” and argued to keep all of their documents secret for fear of giving the former president’s lawyers a “roadmap” to their case.
Judge Bruce Reinhart said he was inclined to release some of the documents and gave the government one week to come up with a plan to determine which documents would be redacted, released, or remain sealed. “I’m not prepared to find the affidavit should be fully sealed,” he told attorneys for the media, Judicial Watch, and the government. Reinhart, who’d previously recused himself from another lawsuit involving Trump, said, “I find on the present record the government has not met its burden of showing the entire affidavit should remain sealed.”
Trump case: trying to keep the search affidavit sealed isn’t going well for the government.
Judge says: “I find that on the present record the Government has not met its burden of showing that the entire affidavit should remain sealed.”
— Marina Medvin 🇺🇸 (@MarinaMedvin) August 18, 2022
Chalk up a temporary win for civil libertarians.
Still, the thought rolling around in my brain was the claim made in court that this investigation was in its “early stages.” This is a breathtaking statement. And it raises more questions than it answers. Let’s go through a few of them.
The attorney for the media companies arguing for unsealing the search warrant affidavit, Deanna Shulman, first mentioned the interesting “early stages” timing of the raid to reporters waiting outside the hearing at the Paul G. Rogers Federal Building in West Palm Beach. Politico noted the “early stages” comment came from the head of the Department of Justice’s (DOJ) counterintelligence division, Jay Bratt. Bratt argued to Judge Reinhart that the “open investigation” was still in its “early stages” and that to reveal any of the supporting documents at such an early stage would ” jeopardize ‘several witnesses’ whose accounts of Trump’s actions were specific enough that the sources for them might be easily identified.” That’s normally how it’s done, but it’s clear these are not normal circumstances.
I’m not an investigator, nor am I a cop, but I am the Adult in the Room and have been around the block reporting on court cases and investigations for longer than a cup of coffee. I can tell you that the raids usually come toward the end of an investigation. And yes, well spotted, that was a metaphorical hat trick.
NEWS — DOJ counterintelligence chief tells judge the Trump investigation is “in its early stages.”
Jay Bratt also said releasing the affidavit could jeopardize “several witnesses” whose accounts were specific enough that they could be identified.https://t.co/yaYFbcIeS7
— Andrew Desiderio (@AndrewDesiderio) August 18, 2022
Former federal prosecutor Andy McCarthy noted in a National Review post written before Thursday’s hearing that service of a search warrant — a raid — usually comes late in an investigation with a perp in his PJs or ankle shackles stranded on the street for hours.
If it has probable cause to get a search warrant, the government nearly always has probable cause for an arrest warrant, too. In fact, quite often the same affidavit is filed to support arrest warrants and search warrants. Investigators would rather wait until the end of their probe to seek both, because investigations are best done in secrecy, without tipping off suspects while evidence is still being covertly gathered. [emphasis added]
These circumstances raise one question and may answer another. First, why conduct a smash and grab raid at the “early stages” when you haven’t investigated enough to know what you need to make your case?
This goes to another important issue. Was this why the warrant was so vague and “overly broad”? How could a warrant that had under its aegis every piece of paper ever generated during Trump’s presidency not be overly broad? “Overly broad” is a legal term of art suggesting we are veering into unconstitutional territory. That’s a Fourth Amendment no-no and it goes to the very reason why patriots escaped to the colonies and declared their independence from the Crown.
It may answer the question of why the FBI combed through Melania Trump’s under lovelies and hired a safecracker. They didn’t seem to know what they were looking for.
This is why it appears this was a raid in search of a crime.
As I wrote at PJ Media shortly after the raid:
The warrant demands that agents remove binders of photographs, documents with classification markings on them, and, the coups de grâce, “any physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes.”
The warrant covers any documents that Trump touched between his first day and last day in office. This included, “information, including communications in any form, regarding the retrieval, storage, or transmission of national defense information or classified material, any government and/or Presidential Records created between January 20, 2017, and January 20, 2021.”
Later, anti-Trump prosecutors showed atypical humility and admitted that, yes, they’d “over collected” documents such as Trump’s passports and privileged documents between Trump and his attorneys. This is no small thing. This is enough to get evidence and possibly the whole case thrown out by a judge. Fruits of the poisonous tree and all that. If agents had an appropriately tailored search warrant and had the judge bothered to look at the underlying documents, then privileged documents that were clearly out of the scope of the warrant wouldn’t have been confiscated. That is unless Trump and his attorneys were scoring crack, smoking meth, doing deals to get raw materials to make lithium batteries for the Chi-coms, and getting payoffs from the Ukrainians and Russkies. Wait, sorry, that’s Hunter Biden and The Big Guy.
Immediately following the raid, the media reported the Feds had hoped to keep the sacking of Mar-a-Lago under wraps, hoping no one would notice–least of all Trump since they knew he was out of town. This is important because it supports the speculation –- and educated speculation is all we’ve got on this point — that the raid was a Hoover special, vacuuming up as many documents, photos, and underpants they could in the hope that they’d find something.
And here are a couple more data points. Why was Monday, August 8, 2022, chosen for the raid?
The warrant was signed by Judge Reinhart on Friday, August 5, 2022. The FBI waited until the following Monday to execute the warrant. You might well be thinking that it takes a bit of planning to stand up a raid like this. True. You have to organize muscle, get the suits to sign on, get a babysitter, tell the spouse you’ll be late, and get the right people with the right clearances lined up to read all these evil, super-secret nuclear secrets that Trump had according to DOJ media leaks. Please read more about this at PJ Media.
We are also told that Attorney General Merrick Garland agonized for weeks or months over raiding a former president’s home. Well, we certainly hope so. But how long has this “early stages” investigation been going on, anyway? Law professor Margot Cleveland, writing for The Federalist, thinks it’s been at least since January, 2022. Newsweek puts the inflection point during the presidential transition in January of 2021, when a news story reported that the head of the National Archives (NARA), David S. Ferriero, noticed someone with Trump carrying a bankers box to Marine One and said, “What the hell’s in that box?’” Thereafter, he made it his mission to get the box and apparently get Trump too.
So what drove the timing of the raid?
This is another important data point. Was this an emergency? What were the exigent circumstances forcing the move on Trump? If Trump had nuclear secrets that they were afraid he’d give over to Joe Biden’s buddies in the PRC or Hillary’s Russkie spy friends who helped write her fake Steele dossier, then why wait till August to do the raid? Isn’t this an emergency?
Why get a search warrant on Friday and serve it on a Monday under such fraught circumstances concerning documents having to do with nuclear issues, which is what the the Washington Post reported, quoting anonymous sources from some government agency?
Conversely, why wait till 90 days before an important election that was expected to cost Democrats a chamber of Congress? That question answers itself.
Oh, but he held classified information, which he wasn’t supposed to have, the media argued. As we know by now, but which I will make as clear as possible – again – in a story that will go to publication within hours and that you’ll find here soon, sitting presidents can declassify at will. In the realm of declassification, nobody’s the boss of the president.
Furthermore, the statutes cited in the search warrant, 18 U.S.C. §§ 793, 2017, or 1591, by the Feds are chargeable because the documents are classified. It’s interesting but less germane to the real issue. The real issue appears to be the other statute the Feds included in Trump’s list of horribles and that’s obstruction of justice.
Let’s provide some context, as I did on PJ Media, on how other presidents and big shots have been dealt with by NARA.
To put it in context, the Clintons stole nearly $200,000 worth of furniture, part of which they were told to pay back. There was no FBI raid. Later, Hillary’s server was chock-full of classified information that was easily hackable by spy agencies. No raid. Then there were President Obama’s 30 million pages of “unclassified documents” that he failed to return to the National Archives (NARA), also with no FBI raid. NARA and Obama’s foundation agreed to a Memo of Understanding (MOU) promise in 2018 that the documents would be digitized and in exchange, Obama’s foundation had to pay $3.3 million to NARA to be allowed to keep the records “on loan.”
David Ferreira signed that Memo of Understanding with the Obama people. Understand, Obama got to keep access to the documents because his foundation paid NARA to keep them “on loan.” No one gave Obama the side-eye, much less brought a battering ram to his Chicago manse.
So what the DOJ wants to keep secret are the documents behind the search warrant. While it’s normal to keep these things under wraps until there’s an indictment — and there will be an indictment of Trump — these are not normal times.
There will be an indictment of Trump, yes; the Left will get their desired perp walk; and it will be on obstruction of justice charges because negotiators for Trump, working with NARA, didn’t fully cooperate with a crotchety librarian at the National Archives who wanted the Feds to find out what was in his box–which he got back, by the way.
And government lawyers swear we can’t possibly know what is in the affidavit underlying the search warrant served on a former president because the investigation is in its “early stages.” Most people think the Feds are just going through Melania’s under lovelies hoping to find a crime.