Probable Cause

Emperor Has No Clothes

Garrett Graff wants to know what we all want to know— what was in the cache of top secret documents that Trump stole? And did he sell out the U.S. to any of our enemies yet? We'll likely never find out. Writing for Wired yesterday, he reported that the visit to Mar-A-Lago Monday was “an action that likely indicates the FBI and prosecutors had specific knowledge of both a definable crime and the evidence to back it up. The actual search warrant, which would list specific crimes being investigated, has not been released yet. According to Monday night news reports, however, the search focused on questions about a number of boxes of classified documents that Trump took from the White House to his Florida mansion after leaving the presidency.”

Although Trump attorney, Christina Bobb, who was there for the FBI action admitted she was given a copy of the warrant, Trump’s lying son #2, Eric, ran to an English scandal sheet to whine that no warrant was left.

This is what Graff has surmised from what we know so far:

Probable Cause Was Clear

Federal search warrants aren’t designed to be fishing expeditions. The FBI’s legally authorized search of a former president’s primary residence would have been approved and monitored at the highest level of both the FBI and the Justice Department, likely including both the deputy attorney general and the attorney general. It’s hard to imagine how high the bar of probable cause must have been for the Bureau to initiate such a politically sensitive search. Ironically, the scandals the FBI has weathered from past Trump investigations likely made the bar for probable cause and sign-off by the department’s upper levels even higher.

A [Trump-Appointed] Judge Signed Off On The Search

A legally authorized search warrant is an important part of the US Constitution’s system of checks and balances. It requires the assent of two of the three branches of government, whereby the executive branch (the DOJ and the FBI) gets the sign-off from the judicial branch. In the case of the Trump property search, once agents and prosecutors assembled their evidence, an independent federal magistrate judge needed to agree that a crime was likely committed and that there was specific evidence at Mar-a-Lago that would have bearing on the crime.

Notably, this is at least the second time this year that a federal judge has agreed Trump was at least adjacent to a crime. As the January 6 congressional committee has repeatedly pointed out, a federal judge agreed with its assessment this spring that Trump “more likely than not” committed a crime amid his efforts to overturn the 2020 elections.

This Isn’t Just About Trump Taking Classified Docs

One of the most important questions in an investigation is about establishing motive, summed up by the Latin phrase cui bono, or Who benefits? Sure, Trump taking home classified documents is technically a crime. But as national security reporter Zach Dorfman points out, it’s hardly a serious enough offense to spur the FBI to raid the home of a former president.

The entire security classification system exists to serve the presidency. The president is the one official in the US government with the ability to unilaterally declassify any piece of information. (Trump famously exercised this power while in office by tweeting a highly classified satellite photo of an Iranian facility). Plus, while classified documents theoretically include highly sensitive information that would damage national security if released, the reality is that many classified documents aren’t that sensitive.

If this was about some run-of-the-mill classified documents accidentally swept up in the president’s hasty exit from the White House, surely the FBI wouldn’t care. Likewise, if these documents weren’t really that sensitive—as it turned out with Hillary Clinton’s 2016 email scandal—it’s hard to imagine the Justice Department going to these lengths.

Ironically (again), the Justice Department’s 2016 decision not to prosecute Hillary Clinton for her sloppy handling of classified materials as secretary of state raises the bar for any prosecution stemming from Trump’s handling of classified documents. DOJ prosecutors are heavily driven by precedent and similar past cases, which means that in order to pursue this Trump investigation, there would have to be more serious (and criminal) concerns than there were in the investigation of Clinton. Thus, we’re left with the big question the FBI is ultimately trying to investigate right now: Who would have benefited from Trump taking home these particular documents— and why?

That A Search Was Necessary At All Tells Us A Lot

It’s not clear that Donald Trump himself is the target of whatever FBI investigation spawned Monday’s search. It could be a Trump staffer or former White House aide who took the documents without the president’s knowledge. But the fact that the FBI felt it necessary to conduct its own search— as opposed to subpoenaing the needed documents or working cooperatively with Trump’s attorneys— should itself be a blinking red alert about the president’s possible legal jeopardy. It’s remarkable that the FBI and prosecutors felt their best recourse was such an adversarial action.

In fact, one of the most intriguing details to come out in the hours after news of the search broke was that DOJ investigators visited Mar-a-Lago in June as part of the investigation into Trump’s handling of documents. Notably, the team included Jay Bratt, the chief of the Justice Department’s counterintelligence and export control section, which is normally a high-level office role in Washington and hardly a standard field investigator. What did they learn during that visit— or since that visit— that influenced the decision to return weeks later in a more adversarial capacity?

One thing we can be nearly certain of though, is that the reflexive GOP circling the wagons around Trump is probably a huge mistake for them. Adam Serwer: “On Fox News, pundits warned of a ‘preemptive coup,’ proclaimed a ‘dark day for the republic,’ and compared the FBI to ‘the gestapo.’ Other conservative-media figures grimly suggested that political violence was imminent, while a few right-wing intellectuals tweeted menacingly in the same tone that a mid-level functionary on the Death Star uses right before he gets choked out by Darth Vader. House Minority Leader Kevin McCarthy announced that the FBI was in a ‘an intolerable state of weaponized politicization’ and threatened to investigate if Republicans take back Congress in the midterms… [I]t was perfectly permissible for Trump to order his attorney general to prosecute his political opponents, to even campaign on that basis, but it is intolerable politicization for him to be investigated, regardless of the basis. Indeed, there is no need to know what the basis even is; it is by definition unjustified because of whom it targets. This reasoning is also why the police who defended the Capitol against the rioters on January 6 were assaulted by people who in any other context would chant ‘Blue lives matter.’ Law enforcement is legitimate and deserving of unconditional support only as long as it enforces the law against groups conservatives want it to target and exempts those they do not. Shortly after news of the raid broke, far-right representatives such as Lauren Boebert, Marjorie Taylor Greene, and Paul Gosar called for the FBI to be defunded or destroyed… Ultimately, conservatives believe this unfairness in the justice system to be a virtue, as long as they are never on its losing end. The Trump supporters outraged about the Mar-a-Lago raid are not lamenting that those protections have been curtailed. They simply believe that Trump should not be subject to the law at all. Political systems with such exemptions exit, but democracy is not one of them."

Oh, yeah... and let's remember what we're dealing with here: "Far-right extremists on pro-Donald Trump message boards and social networks are making violent, antisemitic threats against the judge who reportedly signed the warrant that allowed the FBI to search the former president's Mar-a-Lago property in Florida. Multiple members of these toxic online communities are even posting what appears to be Judge Bruce Reinhart’s home address, phone numbers, and names of his family members alongside threats of extreme violence."