Published by The Lawfare Institute
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I have long worried (here, and, more recently, here) about the adverse consequences of the Biden Justice Department using criminal process against former President Trump. I have also long worried (spurred by Garrett Graff) about the mischief, and potential criminal liability, that Trump might stir up after his presidency with access to classified information. Here are some thoughts spurred by the collision of these worries.
Several sensible commentators—including George Will, Damon Linker, and David Brooks—think Attorney General Merrick Garland made a mistake, perhaps a disastrous one, in executing the search warrant at Mar-a-Lago. (They made these claims before the federal magistrate unsealed the warrant and the inventory of seized materials.) They worry that the search will, in Will’s sedate words, harm “social comity” and “domestic tranquility.”
They are right in this sense: Trump supporters would have viewed any criminal legal process directed at Trump from the Biden Justice Department as, in Linker’s words, “an illegitimate act undertaken by an alien, tyrannical ‘Regime’ resembling a Third World dictatorship.” Justifiably or not, this reaction—and the further diminution in trust in the Justice Department and FBI by a large chunk of the country—was a directly foreseeable consequence of Garland’s decision.
Which is not to say that Garland made the wrong decision. On that question it is far too early to tell. Will is right to suggest that Garland’s decision, even if scrupulously nonpolitical in intent, is “inherently political” and should be judged by how well he “adjust[s] tidy principles to untidy realities” and “balance[s] competing objectives.” And the bar should be very high before the Justice Department in an administration run by Trump’s former and probably future political opponent, uses unprecedented criminal process against Trump—especially given our cleaved politics, upcoming elections, and the well-documented mistakes and illegalities that the Justice Department and FBI committed in pursuing Trump in the past.
And yet Trump has for all his adult life, and especially during his presidency and postpresidency, shown contempt for law. The FBI’s belief that Trump acted illegally in bringing scores of sensitive documents to Florida, or in not returning them upon request, is very far from shocking. It also appears right now—and this too would not be surprising—that Trump and his advisers did not cooperate fully with the National Archives’ and the Justice Department’s efforts to secure and retrieve this information. There obviously must be a point where information is so sensitive, and Trump’s disregard for law so extreme, to justify legal process against Trump, even in the current milieu. Otherwise the law is entirely hostage to a former president’s (and his supporters’) self-serving veto—something no legal system can tolerate.
Garland will be judged over the coming days and months and years on whether that point had been reached—whether Trump’s indifference to law, and the failures of negotiations with Trump to right his wrongs, and the stakes of the information Trump possessed, justified the Mar-a-Lago search.
Lawfare posted a good account of the warrant, the documents seized (which included ones with classified markings), and this summary of what it all implies:
The FBI has clearly developed significant evidence of criminal activity at Mar-a-Lago related to the handling of classified material, and government property more generally. There is evidence of document tampering. And there is evidence, at a minimum, of willful retention of material that should not have been at the resort. Precisely who is the subject of these investigations and how strong the evidence is at this stage remains unclear. But we can infer from the granting of the warrant that a magistrate judge, at least, believes it meets the probable cause standard governing all federal searches and seizures. We can further infer from Garland’s apparent eagerness to have this material made public that the Justice Department is confident of its position, not just in court but in public opinion.
Whether Garland made the right call will depend on how much this description holds up, and how serious the wrongdoing appears to the public independent of legal technicalities.
The first factor is the nature of the classified information that Trump had at Mar-a-Lago. Not all of the legal predicates in the warrant turn on the documents at Mar-a-Lago being classified. But the prudence of Garland’s judgment will turn to a large degree on the true sensitivity of the information there.
Former President Obama once said, in the context of the Hillary Clinton email server investigation:
What I also know, because I handle a lot of classified information, is that … there’s classified, and then there’s classified. There’s stuff that is really top-secret, top-secret, and there's stuff that is being presented to the president or the secretary of state, that you might not want on the transom, or going out over the wire, but is basically stuff that you could get in open-source.
Obama was criticized for this remark because he commented publicly on the investigation, and because he revealed the skepticism with which top officials view (and often disregard) the U.S. government’s overclassification of information.
And yet there is truth in what Obama says. The government massively overclassifies, and even many highly classified secrets are “stuff that you could get in open-source.” It will matter a lot, in assessing Garland’s decisions, whether the information Trump had was closer to “really top-secret, top-secret” or to information available in public.
There are many reports that “[c]lassified documents relating to nuclear weapons were among the items FBI agents sought.” Trump’s unsurprising response: “Nuclear weapons is a hoax, just like Russia, Russia, Russia was a hoax, two Impeachments were a hoax, the Mueller investigation was a hoax, and much more.” If indeed the FBI was searching for “documents related to nuclear weapons,” it will matter a lot whether the documents concerned, for example, Trump’s tweet-claim that his button was bigger than Kim Jong-un’s or, rather, described nuclear weapons design or foreign nuclear capabilities—in other words, secrets that, if revealed, would truly harm national security.
The second factor will concern what Trump and his associates did with the information. The warrant referenced 18 U.S.C. § 1519, a criminal statute that prohibits the destruction, alteration, or falsification of records in federal investigations, and 18 U.S.C. § 2071, a criminal statute barring the concealment, removal, or mutilation of government records. It will matter a lot whether Trump and his team, for example, merely removed classified markings on documents that Trump previously declassified (more on this below), or whether they did something more nefarious, such as altering or destroying documents to conceal illegal possession. (There are of course many possibilities in between.)
It will also matter, relatedly, what we learn about the process preceding the search. Had Trump and his team been cooperating with the government to return all inappropriately retained documents, to the point where the two sides had reached a good-faith disagreement? Or had they been prevaricating and stonewalling in bad faith?
Early reports suggest something closer to the latter, but many relevant details remain unclear. The ultimate answer to this question will (among other things) inform how to assess the invocation of the third statute referenced in the warrant, 18 U.S.C. § 793, which criminalizes the failure to deliver on demand documents and other materials “relating to the national defense” that “could be used to the injury of the United States or to the advantage of any foreign nation.” If Garland is invoking this famously vague criminal provision from the Espionage Act over a good-faith dispute about compliance with the Presidential Records Act, that will be viewed as overkill. If he did so as a last-ditch effort to secure vital national security secrets, that is another matter altogether.
The third factor will turn on the legitimacy of the claim that Trump declassified all of the relevant documents. Trump says, “It was all declassified.” His aide Kash Patel stated in May that “Trump declassified whole sets of materials in anticipation of leaving government.” And John Solomon, Trump’s go-between with the National Archives, stated more recently that Trump had a “standing order” during his presidency that “documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.”
The entire system of classified information rests on the president’s Article II power as chief executive and commander in chief. As I once explained:
Executive Order 13526, which constitutes, defines and governs the classified information system, is based on “the authority vested in [the] President by the Constitution and” some unspecified “laws of the United States.” As the Supreme Court stated in Department of the Navy v. Egan, “[The President’s] authority to classify and control access to information bearing on national security ... flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.” This is why presidents don’t need security clearances, don’t sign prepublication review documents and can declassify classified information at will. It is a frighteningly broad and important power[.]
Charlie Savage has a good explainer on how Trump’s supposed declassification of documents relates to the criminal statutes referenced in the warrant. Savage notes that whether and how Trump followed standard procedures in declassifying the documents will matter for evidentiary purposes, but adds that “Trump’s lawyers could argue that he was not constitutionally bound to obey such rules.” The president’s power here is widely believed, inside and outside the executive branch, to be quite broad. But its actual breadth, including the steps a president must take to declassify, has barely been tested in court. We may soon learn a lot more about the scope of the president’s power over classification and declassification. (As I explained here, a former president has no authority to classify or declassify; the legitimacy of Trump’s declassification actions will be determined entirely by what he did while he was serving as president.)
Savage also notes that a successful Trump declassification “would not settle the matter” because the statutes referenced in the warrant criminalize concealment or unauthorized retention of certain nonclassified records. This judgment turns on what it means to “settle the matter.” Savage is right that the statutes do not necessarily turn on information being classified. But a president’s declassification decisions in office might inform predicates that the statutes do focus on—whether, for example, the documents were improperly retained or concealed, or whether retention was unauthorized and could harm national security. The classification status of the materials may also inform the prudence of the Justice Department going after a former president with heavy criminal process. (This is a different point from whether any classified information was, in Obama’s phrase, “really top-secret, top-secret” or not.)
In this regard, it is worth noting the possibility that Trump successfully declassified the documents in question before he left office, but that the Biden administration, upon learning about the information in the documents, reclassified them before insisting that they be returned. If that is what happened, then it doesn’t matter that Trump declassified the documents. It is the current president and administration that possess the authority to determine which information should be classified. (But it might matter in evaluating the merits of the search, if this speculation pans out, how the current administration determined that the documents should be reclassified, and how convincing the need for classification was.)
Several other factors will inform how Garland’s actions here are judged. It obviously matters if Garland indicts anyone following this search. A prosecution—of either Trump or his associates—would raise the stakes significantly higher. Garland could have executed the warrant in good faith as a last-ditch effort to secure sensitive documents and yet decide, as a matter of prosecutorial discretion, that any discovered criminal activity should not be prosecuted for prudential reasons—including national harmony, worries about revealing classified information at trial, or doubts about a successful prosecution.
The final factor concerns where the Mar-a-Lago action fits into the larger picture of Justice Department actions against Trump, including, for example, any criminal action related to Jan. 6. One (unlikely) possibility is that the Florida search was an isolated action against Trump that does not result in a prosecution, that is not followed by other department actions against him, and that quickly diminishes in significance. At the other extreme, and more likely, is that the Mar-a-Lago search will be followed by a multipronged criminal investigation of Trump, his associates, and perhaps some congressional Republicans related to Jan. 6 (or some other matter).
There are too many imponderables here to assess this issue at this point. But in general, and even assuming very bad acts by Team Trump, the more unprecedented investigatory and prosecutorial steps that one administration takes in response to the acts of a prior administration, the worse. If there is a lot more to come, and it seems that there is, that will put more pressure on the question whether Garland acted prudently out of practical necessity in executing the Mar-a-Lago warrant.
All of Garland’s decisions will be judged, as former FBI Director James Comey once wrote, not from the perspective of “urgency and exigency” under which he acted but, rather, from the “perfect, and brutally unfair, vision of hindsight.” Hopefully Garland anticipated this hindsight judgment and acted with a scrupulous attention to process, and with a fair-minded, non-overreactive assessment of the facts, and of what needed to be done, all things considered.