see update 8-22-22 below
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Copied from the PBS News Hour website as of Aug 9, 2022:
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4 things to know about
the FBI search of Donald Trump’s Mar-a-Lago estate
Politics Aug 9, 2022 4:37 PM EDT
“My beautiful home, Mar-A-Lago in Palm Beach, Florida, is currently under siege, raided, and occupied by a large group of FBI agents. … They even broke into my safe!” Trump said in a statement released through his political action committee, Save America.
Trump brought 15 boxes of classified materials with him to Mar-a-Lago when he left the White House, and delayed returning the materials to National Archives officials for months.
READ MORE: FBI searches Trump’s Mar-a-Lago estate
Georgia State University legal scholar Clark D. Cunningham, an expert on search warrants and the criminal investigations of interference in the 2020 election, explains what could have led to the raid and what the raid tells us about the state of the federal investigation into Trump’s activities.
1. There are legal hurdles to getting a search warrant
The U.S. Constitution requires that
all search warrants “particularly describe the place to be searched and the …
things to be seized.”
This requirement can be traced in part to a famous British case from the 1760s when agents of King George III searched the house of John Wilkes, an opposition member of Parliament, for incriminating papers. The warrant they used was condemned by the courts as a “general warrant” because it did not specifically name Wilkes, his house or the seized papers.
Courts and commentators also criticized the Wilkes warrant because it was based on mere suspicion. The U.S. founders looked to the Wilkes warrant as an example of what the Constitution should prevent and added the Fourth Amendment – requiring that search warrants only be issued “upon probable cause, supported by Oath.”
WATCH: Jan. 6 committee says Donald Trump is to blame for the violence
Criminal procedure laws help enforce these constitutional requirements by requiring search warrants to particularly describe “evidence of a crime … or other items illegally possessed.”
Only judges can issue search warrants, and they must find, based on sworn testimony, that there is probable cause that such evidence or items will be found in the location described in the warrant.
This means that a judge must have found that there was probable cause that either a crime had been committed, or that Trump was illegally possessing items taken from the White House. The FBI’s request for a search warrant might also have indicated concern that these documents would either be destroyed or moved off of the premises.
2. There are also potential policy hurdles
In February 2020, then-Attorney
General William Barr announced new restrictions that
require the FBI and other law enforcement agencies to get permission from the
Attorney General before investigating presidential candidates or their staff.
Barr’s successor, Attorney General Merrick Garland, has kept this policy in place – keeping in line with general Justice Department guidelines that try to prevent politically charged investigations.
This means that this search would not have taken place without Garland’s approval. Given the generally strong tradition of political independence at the Justice Department, it is not surprising that President Joe Biden and his aides were not informed in advance of the raid and found out on Twitter.
3. The FBI might have found more than it was looking for
The Supreme Court ruled in a 1990 case that police executing a warrant that authorized searching for the proceeds of a robbery could also lawfully seize weapons that were in plain view.
WATCH: Jan. 6 panel probes Donald Trump’s ‘call to arms’ on social
media
Assuming that the FBI’s warrant authorized only searching for classified documents taken from the White House, if the FBI found “in plain view” other evidence of crimes related to the 2020 election or Jan. 6, 2021, Capitol insurrection, they likely could have taken that, as well.
4. There may be a connection with Trump’s possible election interference
A federal grand jury, requested by the Justice Department, has been investigating the presence of potentially classified
documents at Mar-a-Lago since at least early May 2022. It seems likely that
something has happened recently to cause this urgent search. One possibility is
that the search warrant was issued based on information gathered in one or more of the criminal investigations involving 2020 election interference.
In particular, the Department of
Justice on July 12, 2022, obtained a warrant to search the cellphone of John Eastman, Trump’s former
lawyer. As hearings by the Jan. 6 House committee have revealed, Eastman was
a primary architect of the plan to
block Congress from certifying Biden’s victory.
There seems little doubt that the Justice Department had compelling, perhaps overwhelming, legal justifications for conducting this unprecedented search of a former president’s home. However, the secrecy required for Justice Department investigations and grand jury proceedings means that the country will have to be patient – the justifications for the search may become public only if and when criminal charges are filed.
This article is republished
from The Conversation under a Creative Commons license. Read the original article.
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My Conclusions:
1.
Sounds like a very apolitical, very well-executed (and proper) search
warrant, not anything at all like a
“radical left witch hunt”. Looks to me
like the DOJ and FBI did this “right”.
2.
It will be a while before we hear what they actually
found, and what legal jeopardy the
former president might actually be in,
because of this.
3. The fact that the probable cause evidence
submitted to the judge was good enough to issue the search warrant, suggests that a federal criminal indictment
of Mr. Trump is more likely to follow,
than not. Perhaps multiple
indictments. Perhaps not. We will see.
4. The pro-Trump extremists calling for civil war
over this, are committing treason, in my opinion.
All that I know for sure is that, in this country of late, you get the best “justice” that your money can buy! (And we-the-people need to fix that, because it very definitely is not right!) If I had mishandled classified information in my defense jobs 3-to-5 decades ago, the way Mr. Trump did with his classified presidential records taken to Mar-A-Lago, I would still be in prison today, doing hard time.
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Update 8-22-2022:
The warrant specifies searching for evidence for (1) violations of the espionage act (specifically mishandling classified materials), (2) violations of the presidential records act (these must be given to the national archives, not retained), and (3) possible obstruction of justice.
On the face of it, the violations of the espionage act and the presidential records act seem pretty cut-and-dried self-proving as "guilty". Those are federal felonies. As for obstruction of justice, we'll see. It'll take DOJ a while to comb through all the stuff taken by the FBI, and they will be reluctant to reveal what they find before the cases go to court.
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