This thought-treatment I really do hope to keep tight. Nothing has changed substantially in terms of common facts since the last article, and my hope is to help focus the speculation on the situation, which right now is all over the place.
The pings have to do with (1) what the DOJ/FBI could have been and/or probably were looking for in the 8 August 2022 raid at Mar-a-Lago; (2) what the purpose(s) of the raid may have been; and (3) what DOJ and FBI already know about Trump knows, what he’s been doing at any relevant time in the past, and what his intentions are.
Regarding (2), I suspect there was more than one purpose. After all – and this isn’t a weak corroborating point, it’s essential – there’s more than one major thing going on. The direction and timing of maneuver in executing this warrant are the keys, in my view. The situation is dynamic, with a lot of reacting involved, as opposed to DOJ and FBI marching single-mindedly to one objective. But as discussed in the earlier post linked above, interdicting material Trump could use in his RICO lawsuit continues to look like the primary and most concrete purpose.
The interplay of pings (1), (2), and (3) is also important.
The material sought
Starting with ping (1):
Three analytical factors help narrow down what the raid, per se, was about. One is that the FBI was at Mar-a-Lago on 3 June 2022, and appears to have put eyes at that time on most of the documents seized last week, if not all.
That means that there’s quite a bit of what was actually seized that the FBI and DOJ were in no doubt about. They knew what it was. They weren’t seizing it in order to find out. (Note that this would effectively eliminate the idea of urgent concern about monumental national security secrets, raised so diligently by the mainstream media. If Trump were holding such material and there really were probable cause to accuse him of crimes because he was holding it, the material could and should have been seized immediately on 3 June. Today, however, nothing in seizing the material would illuminate further the question of whether a crime was being committed.)
We don’t know for sure how much previously unreviewed material the FBI seized. But the warrant issued by Judge Reinhart, the second analytical factor, gives us a decisive perspective on that question. It’s rare to have an indicator so decisive, but the 5 August warrant affords one. The scope of the attachment on property to be seized is ridiculously broad, including this gem (called out by numerous others): “Any government and/or Presidential Records created between January 20, 2017, and January 20, 2021…”
Which could mean seizing almost anything.
Some have speculated that this overbroad language was cover for the FBI knowing exactly what it was looking for, but not wanting to be specific in the warrant.
I suppose that’s possible, but here’s where the material targeted by the warrant runs up against the purpose of the warrant. If DOJ wants to use the items seized under this warrant in court, there’s a legitimate case that they shouldn’t get to. The warrant is atrociously constructed from a Fourth Amendment standpoint, and in any case was executed unnecessarily (even improperly) for any known predicate for an indictable crime.
It doesn’t help that in addition to excluding Trump’s lawyers from viewing the search on 8 August, the FBI reportedly demanded that the security cameras be turned off.
You don’t do things that way if your purpose is to use seized materials in court.
The purpose of the raid-executed warrant
If the FBI was just helping the National Archives out, there’s no felony crime that Trump could be committing. If DOJ had probable cause to suspect a felony crime under the three statutes cited in the warrant, the specifics of the crime’s definition wouldn’t be as vague as they evidently are, if one or all of the statutes is in play. The three look like they were picked because they randomly cover misuses of classified information – misuses of different kinds, sort of a grab-bag, thrown in because the Justice Department really has no idea what crime(s) it might settle on.
A subpoena for the documents would have been the appropriate instrument from every perspective in this situation.
We have good reason to question whether DOJ ever planned to use the seized material as evidence in court. It’s more likely the purpose of the warrant was what it looks like: a fishing expedition, to manufacture something to either fight Trump with, or dangle him with. Or both.
Keep in mind, DOJ knew what Trump was holding – in particular as regards the material at issue for the National Archives – after the 3 June search. We don’t know for certain, but it’s a good bet DOJ and FBI also gained a pretty comprehensive idea of anything else Trump was holding.
Those salient points preceded DOJ’s motion on 14 July to substitute itself for private-individual defendants in Trump’s RICO lawsuit against Hillary Clinton et al. (See link at the top of this post.)
I can’t overemphasize the importance of this substitution. Trump didn’t bring the original lawsuit against any entity of the U.S. government. He brought it against a list of private defendants. The U.S. government had no direct stake in the suit – until the DOJ moved to substitute itself for five one-time FBI officials.
That’s not because DOJ cares about the FBI employees. It’s because DOJ wanted into the suit. Since the RICO judge – Judge Middlebrooks – granted the DOJ motion on 22 July 2022, Trump’s suit has changed character.
Before that date Trump wasn’t facing the U.S. government – the Biden administration, officially, as ordered by a judge – in his civil suit. Now he is.
And the first thing the DOJ did after gaining this leverage inside Trump’s lawsuit was have the FBI execute a raid on Mar-a-Lago, based on a badly-constructed warrant that reeks of “fishing expedition.”
No one else in the RICO-suit defendants list could have made that happen. Raw leverage, displayed.
Still under factor (2): DOJ, the Biden administration, and/or the Biden “cabal” (TIME’s word, not mine), may well have had more than one purpose for the raid, and in fact probably did.
Many observers posit that the raid was meant to intimidate and send a signal, to Trump and his voters. I don’t doubt this point, which is the first one that leaped out at most onlookers. This is the basic “banana republic” profile: the use of government power by a political faction to frighten and discourage its opponents. The anti-constitutional nature of the warrant comports with this purpose. But I don’t think it’s the only one.
Some observers are sure that the purpose is to put Trump in an embarrassing, politically damaging situation ahead of the 2022 election. This supposition would emphasize the goal of scrounging “dirt” on him with a fishing expedition.
Others see connections to the 6 January committee drama, floating as one possibility that the raid could have sought materials revealing a Trump role as instigator in it. The fishing-expedition model would suit that goal as well.
I wouldn’t dismiss either possibility. They could both be in play.
But for my money, the RICO lawsuit is the nexus at which Trump can damage the Democrats’ cause, by deploying the information he has formally declassified on the government’s conduct of Crossfire Hurricane and the larger Russiagate/Spygate enterprise. That declassified information is directly relevant to the lawsuit, because Russiagate/Spygate and their planners are what the lawsuit is about.
The first priority in the ongoing campaign of the “cabal” is stopping Trump from using that material in court.
Look at the maneuvers, not at the as-yet-unknown potential outcomes. Where is Trump held at risk now, with the US DOJ substitution in the lawsuit approved? From inside his RICO suit. DOJ is no longer an outsider waiting for Trump or one of the defendants to make DOJ respond to something.
What is held at risk, as regards Trump? His information on the government’s role in Russiagate and Spygate. He could to some extent have controlled the use of it in the lawsuit – unless DOJ got there first and clamped down on the declassified material as evidence in an ongoing federal investigation.
It’s likely that that’s what DOJ intends to do. Keep in mind, DOJ already knows every single syllable of what Trump ordered formally declassified. He notified the Department of it on 19 January 2021.
For this purpose, as well as the others suggested above, DOJ probably wanted to discover whether Trump had additional material at Mar-a-Lago that wasn’t in that end-of-term declassification package (which, if so, would probably have been because it didn’t need to be).
And, regarding the 6 January riot, DOJ could well want to know if Trump was holding information on DOJ and other executive departments, including documentation of what they did before, during, and after the event.
So the fishing-expedition model applies to all the various possibilities. The timing of the raid, however, and the certainty that Trump declassified information relevant to his RICO lawsuit, tend to highlight that dynamic as the chief one. The immediate rush to criminalize Trump’s holding of any and all documents at Mar-a-Lago, and the drumbeat about “classified material,” is perfectly designed to prejudice the public about those point before anyone even knows what the material is.
That’s exactly the mindset DOJ needs the people to have, in order to pre-impugn Trump’s potential evidence for the RICO lawsuit, and ideally tie it up in a separate criminal case.
Absorb this point, if you will: none of this has to hold up in court. This isn’t a legal battle DOJ is girding up for. It’s a political battle using the means of the legal system. As I noted in promoting the earlier article on social media, it’s maneuver warfare. Trying to make each aspect of DOJ’s behavior fit the proper conduct of legal operations is missing the forest for the trees.
The unmoving target
Factor (3) – what Trump knows (as perceived by DOJ), and his actions and intentions – flows naturally from these considerations.
As a general matter, media speculation is falling into the rather thoughtless rut it was stuck in throughout the Russiagate propaganda period and the continuation of Spygate in the Mueller operation. It’s a point I’ve made numerous times: the government agencies and the media have relied on the novelty of emerging, “leaked” information to bolster the sense that government agencies have only just discovered what’s news to the people.
In reality, that impression of what government agencies know is a false one. It became glaringly evident, in every corner of Spygate, that that wasn’t the case in the period 2016 to 2019. Again, I made the point frequently at the time: everything Mueller ever “found out” from May 2017 to February 2019 was known to agencies of the federal government before May 2017.
That included everything about Trump, and everything important about the manufacturers of the Russiagate hoax. It was a childish fiction that Mueller’s team was uncovering astonishing things not known before its operation started. What the government hadn’t already spied on, there were records of government activity on. Mueller may not have done much with some of the government-activity records, or major chunks of the spying records (e.g., the questionable Section 702 queries on Trump and his associates) – but the records were there, and the people who knew what was in them were all walking around fogging a mirror, most of them in cognizant, responsible positions.
The same is true of the raid on Mar-a-Lago, and what it, or other methods in any associated investigation, may “uncover” about Trump. Trump has been out of office since January 2021, and Biden has been in office for the same length of time. It’s a childish fiction that the Biden DOJ would only just be discovering, with artistic horror, that Trump has been harboring “Nuclear Secrets!” or much of anything else at Mar-a-Lago.
Without going into detail, a key aspect of the reality about Trump and classified material is that he and his immediate presidential staff would have had little opportunity to spirit out of the White House the kinds of national security information many are speculating on. It’s mistaken to think the CIA would be telling him, for example, who its high-performing confidential informants inside the Kremlin might be. The CIA certainly wouldn’t be putting it in files whose removal from the White House no one would notice, or, equally important, whose presentation and storage would ever come to the attention of the National Archives.
The CIA keeps those records. They don’t circulate freely through the White House. If Trump had demanded to know more than was routine and seemly about informants inside the Kremlin, it’s pretty much guaranteed we’d have had actual evidence of that years ago, from alarmed CIA officials, rather than random pop-ups of Sudden Innuendo from the media.
There are a number of classified instances on which similar points can be made. The White House isn’t an information-security free-for-all. There’s only one POTUS, he doesn’t pack his own boxes, and he’s surrounded by staffers who don’t, in fact, get to see and touch everything classified. Most of what the president sees or hears, in the categories being shrieked about in the media, is briefed to him verbally, if briefed in-depth, with storyboards and hand puppets that exit with the briefer. (Regarding information in the PDB, what’s characteristically of interest is the fact that it’s being briefed to the president, more than the classification level of the content. When former Russian Ambassador Kislyak’s phone calls with incoming National Security Advisor Michael Flynn were reported in the PDB in December 2016, it would have been of zero interest to foreign intel consumers that the phone calls occurred or what the U.S. classification was. What would have woken them up was the president being briefed on it, with intel-derived information featuring Flynn by name. They would have had no hesitation in calling it what it was: the Obama administration spying on its successor. In the event, foreign consumers had no need to read the PDB. They got the same information from David Ignatius — from the same intel source, and obviously leaked from someone with a clearance — in the Washington Post a week and a half later.)
“Imagery from the most advanced satellites!” would be an instance of briefing format not matching the inventory listed from Mar-a-Lago, or being handy for pilfering by staff. The hard-copy media presentations, or the digital presentations, necessary to illustrate the nature of advanced capabilities aren’t something staffers could just pack in a box, or save off in a file without anyone noticing, and prance out of the White House with. (On the other hand, you don’t have to search very hard to discover that there’s a lot of stuff to just save from the Worldwide Web.)
The mere propensity to save off such classified files, if any such pattern existed, would have set off alarm bells about Trump’s staff that we would already have been informed of.
If such file extractions had occurred, agencies of the Biden administration would have been all over the evidence of them months ago.
As for what Trump knows and the motives he may be operating from, it’s known quite openly, with no secrecy or surprise in the mix, that he declassified a lot of material on Russiagate and Spygate at the end of his term. There’s nothing untoward in his keeping copies of such documents. They’re declassified; the federal agencies and the public were notified, and there’s no such rule as “Only the National Archives gets to hold copies of documents that happen to be dated to a president’s term in office.” If there were such a rule, nothing at all from federal executive agencies would be available to anyone, except by going through the Archives.
Trump sent the declassified files back to the agencies with his memo to DOJ in January 2021. It isn’t clear from what I can tell if he deposited copies with the National Archives; if not, that was probably because he requested DOJ to publish the documents, and didn’t propose to circumvent that publication path by handing them directly to the Archives himself. That actually sounds to me like the right way to handle it. (It’s never been clear why he didn’t just publish the documents from the White House. Your choice as to the light you view that in.)
Meanwhile, regarding what Trump’s recent activities and intentions have been, it would be as shortsighted to assume he isn’t being monitored now as it was to assume he wasn’t being monitored before he got elected. How many times do DOJ and FBI have to misuse the intrusive powers of law enforcement before American observers recollect that, gee whiz, they’re probably still doing it? We’ve just witnessed an armed raid on Mar-a-Lago premised on basically nothing, and yet we’d assume nothing else extraconstitutional, or even just hyper-suspicious and extra-vigilant, is being done to monitor Trump?
It’s a good rule of thumb, in this situation, to ask yourself, “Am I speculating as if the federal agencies only just found out, or only just started suspecting, what’s being ‘leaked’ to the media?”
If that’s what you’re doing, you’re on the wrong track. The media are happy to foster the misleading impression. But there’s no such thing as Trump doing terrible things in secret for years and no one realizing it until 5 August 2022, when a radioactive bug bit someone at the Department of Justice and an epically weird warrant popped out signed by a magistrate judge in the Southern District of Florida.
The most likely scenario is that, as regards Trump and some unnamed misuse of “intelligence files,” there’s no there there. In the absence of real and consequential procedural moves made in court, we can dispense with the idea that the Mar-a-Lago raid was about verifying crimes, or was even a very useful way to verify them, and concentrate on what is more likely to be the motive.
Feature image: Ground Zero for the Mar-a-Lago raid motive. Courtroom: Pixabay. Figure images: Wikipedia; news video