I think it is beginning to dawn on Trump and his supporters that the execution of a search warrant by the FBI on his Mar-a-Lago home is more serious than they initially thought and that the legal net is closing around him. They initially reacted as if the department of justice had handed him a gift by providing evidence that he was being harassed by the Deep State and used that claim to fundraise from his supporters. Republican congresspeople also echoed those statements and inflamed feelings against the FBI and the department of justice. In fact, it was Trump himself who first broadcast the search in sensational terms, as if the FBI had stormed into his property and ransacked the place, they way they sometimes do with ordinary people. In fact, it was done quite discreetly. The FBI had executed a properly authorized search with the cooperation of people on the premises. The news of the search would have come out eventually but Trump was the one who sensationalized it.
Now that it has been revealed that the FBI had recovered documents that had some of the highest levels of secrecy classification, some of the early and vociferous people who had condemned the search are trying to walk things back. Whether the documents recovered deserve such a high degree of classification or not (the government is notorious for over-classifying things) is not really relevant since it is a crime to have them if they were not supposed to be there.
Meanwhile, the justice department has said that they would not ask for the release of the affidavit they provided to the judge in support of their search warrant application because doing so would impede their criminal investigation. That affidavit would reveal more information about why the search was required and authorized.
“If disclosed, the affidavit would serve as a roadmap to the government’s ongoing investigation, providing specific details about its direction and likely course, in a manner that is highly likely to compromise future investigative steps,” U.S. Attorney Juan Gonzalez and Justice Department counterintelligence chief Jay Bratt said in a filing urging the continued secrecy of the affidavit.
“The fact that this investigation implicates highly classified materials further underscores the need to protect the integrity of the investigation and exacerbates the potential for harm if information is disclosed to the public prematurely or improperly,” the DOJ officials wrote.
“Disclosure of the government’s affidavit at this stage would also likely chill future cooperation by witnesses whose assistance may be sought as this investigation progresses, as well as in other high-profile investigations,” Gonzalez and Bratt say, adding “This is not merely a hypothetical concern, given the widely reported threats made against law enforcement personnel in the wake of the August 8 search.”
Sworn affidavits that undergird search warrants are typically sealed until charges are issued or an investigation is closed. They are typically provided by an FBI agent connected to the case and attest to the reasons the bureau believes there is probable cause of a crime.
In the face of the darkening clouds over Trump, he and his followers have started trying out alternative exculpatory theories. One is that the documents were planted by the FBI. Planting of evidence on innocent people by law enforcement is by no means unusual but it seems unlikely in this case and this position is only being advanced by the most nutty of his followers. Another theory is that he had declassified the documents before they were taken, though no evidence has been produced that he did so. Then there is the claim that Trump, while president, had issued a ‘standing order’ that any documents taken to his residences be deemed unclassified. That has been denied. And then there is the old standby that Barack Obama had taken 30 million documents with him when he left office, something that the National Archives and Records Administration office that should be the place where these documents are stored, has also denied.
Now Trump is claiming that some of the documents are covered by attorney-client privilege and hence the FBI should not have taken them and is demanding that they be returned.
Oh great! It has just been learned that the FBI, in its now famous raid of Mar-a-Lago, took boxes of privileged “attorney-client” material, and also “executive” privileged material, which they knowingly should not have taken. By copy of this TRUTH, I respectfully request that these documents be immediately returned to the location from which they were taken. Thank you!
Trump seems to think that by using vaguely legal language (What the hell does “By copy of this TRUTH” even mean?), his posts on his social media account carry legal weight, though that is not how it works. (Trump’s social media site, his alternative to Twitter from which he was kicked off, is called Truth Social and posts there are called ‘Truths’.)
It seems to be the opinion among some in the political commentariat that there is a race to see which will come first: an announcement by Trump that he is running for the presidency in 2024 or an indictment from the justice department against Trump for one or more crimes. This opinion is based on the assumption that the justice department would not want to get in the middle of aa political campaign, and thus would hold off on any indictments if Trump announces his candidacy. This position would argue that it would benefit him to announce quickly. Meanwhile Alina Habba, one of Trump’s attorneys, seems to be giving him the opposite advice, that if he wants all the investigations into him to stop, he should announce that he is NOT running for office again. This opinion seems to be based on the assumption that all these investigations are indeed purely malicious and just designed to sabotage his political future. If he has no political future, then there will be no investigations.
I am not convinced by either theory. I do not think that the department of justice is in any hurry to decide on whether to issue indictments or not because the idea that you cannot or should not indict a candidate for major political office is not firmly grounded in law. What is likely is that they will be unwilling to indict a former president, whether or not he is running again for that office, unless they have a very strong case. Since we are not privy to how the wheels are grinding within that department, we will just have to wait and see.
Meanwhile, in Georgia, there are major developments in a lower profile case where state attorneys are investigating possible election crimes that may have been committed there.
Prosecutors in Atlanta on Monday told lawyers for Rudy Giuliani that he’s a target of their criminal investigation into possible illegal attempts by then-President Donald Trump and others to interfere in the 2020 general election in Georgia.
The revelation that Giuliani, a lawyer for Trump, is a target of the investigation by Fulton County District Attorney Fani Willis edges the probe closer to the former president. Willis has said she is considering calling Trump himself to testify before the special grand jury, and the former president has hired a criminal defense attorney in Atlanta.
Giuliani, who spread false claims of election fraud in Atlanta’s Fulton County as he led efforts to overturn the state’s election results, is to testify Wednesday before a special grand jury that was impaneled at Willis’s request.
Also Monday, a federal judge said U.S. Sen. Lindsey Graham must testify before the special grand jury. Prosecutors have said they want to ask Graham about phone calls they say he made to Georgia Secretary of State Brad Raffensperger and his staff in the weeks following the election.
Willis’s investigation was spurred by a phone call between Trump and Raffensperger. During that January 2021 conversation, Trump suggested that Raffensperger “find” the votes needed to reverse his narrow loss in the state.
Willis also wrote in a petition seeking the testimony of attorney Kenneth Chesebro that he worked with Giuliani to coordinate and carry out a plan to have Georgia Republicans serve as fake electors. Those 16 people signed a certificate declaring falsely that Trump had won the 2020 presidential election and declaring themselves the state’s “duly elected and qualified” electors even though Joe Biden had won the state and a slate of Democratic electors was certified.
All 16 of those fake electors have received letters saying they are targets of the investigation, Willis said in a court filing last month.
It is exhausting having to keep track of the many investigations into Trump and the 2020 elections.
Trevor Noah comments on the changing excuses given by Trump and his allies.