Thoughts on a particular search warrant
What about Roger Stone, France, John Solomon, Kash Patel, and Trump's privilege claims? Also: A totally unrelated story about when a federal task force killed a suspect and Bill Barr bragged about it.
A week ago, the Feds executed a search warrant on Mar-a-Lago.
The act was extraordinary because it was so unbelievably ordinary.
The FBI believed “physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed” were going to be found at a particular place, so agents sought and obtained a search warrant on a Friday and executed it the next Monday.
Of course, the extraordinary part is that the former president, Donald Trump, lives at Mar-a-Lago and the evidence the Feds were looking for was evidence to show possible violations of 18 U.S.C. §§ 793, 2071 , or 1519. Those are: “Gathering, transmitting or losing defense information;” “Concealment, removal, or mutilation generally; and “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy,” respectively.
And, then, this past Friday, Aug. 12, the warrant and receipt of property taken in the search were unsealed.
Despite the debate over classification and declassification (detailed in the New York Times by Charlie Savage) — including Trump’s ludicrous Friday night claim that he had a “standing order” that anything that left the Oval Office and went to the residence was declassified — the statutes under which the FBI sought the search warrant don’t require classified materials to be at issue (which Savage also discussed).
Section 793 — part of the Espionage Act — only references documents “relating to the national defense.” Section 1519 — impeding an investigation — is even more broad, applying to “any record, document, or tangible object” that is concealed to impede an investigation. Section 2071 applies to concealing or removing “any record, … document, or other thing, filed or deposited … in any public office … or with any … public officer of the United States.”
While there are several strands of interesting questions raised by this search, I wanted to highlight three that currently have my interest.
First, from the actual search. Throughout the description of what was taken, items listed as #A always follow an item of the same #. In all of the cases but one it is fairly clear that the # is an item where items responsive to the warrant were found and #A is an item of more particular interest found within that larger grouping. Such as:
That appears to be consistent as to the most sensitive documents allegedly retrieved from the search — the classified/top secret/sensitive compartmented information — given that such a numbering system would mean they were found in the “Leatherbound box.”
Which brings us to Items 1 (“Executive Grant of Clemency re: Roger Stone, Jr.”) and 1A (“Info re: President of France”): Does the information about France relate to Stone’s clemency documents?
It is possible that they were simply just found in the same location and the clemency grant was found first, so the France info got labeled “1A.” It’s not clear to me that the numbering system works that way, though. As best I can tell, the numbering system would actually signify that the clemency grant or supporting material for the grant contained information about the president of France.
It’s also by no means clear to me that 1 is referring to the clemency grant issued by Trump for Stone in 2020. I actually think it’s more likely a reference to the 2021 pardon that Stone sought after Jan. 6, 2021, which likely would be something Trump might not have wanted to leave with the Archives.
Second, there’s been a thread of news out there — that does seem to be coming closer to front-and-center — relating to how John Solomon (of the “standing order” claim this weekend, but earlier at The Hill and now at his “Just the News” site) and Kash Patel (the Nunes aide-turned-Trump National Security Council staffer-turned-Defense Department chief of staff) were named by Trump as his “representatives for access to Presidential records” in a letter to the National Archives (NARA) in mid-June. The timing and purpose of Trump giving Solomon and Patel such a NARA designation is drawing more attention by the day.
Back in June, Politico’s Betsy Woodruff Swan reported the news, with an angle from Solomon that this was about his getting “access to documents related to the Russia probe that were declassified in the final days of [the Trump] administration.” Since the raid, Marcy Wheeler has focused in on these questions, with lots of speculation. And, on Sunday, Lisa Rubin highlighted the actual letter to the Archives from Trump, which is dated June 19 and makes clear that Solomon has had full access to Trump’s presidential records — not just Russia-related records, as Solomon framed things in the initial story. As does Patel.
Finally, on Sunday, Aug. 15, Trump claimed — on his “Truth” social networking site — that “executive” and “attorney-client” privileged materials were taken from Mar-a-Lago during the search, which he said “they knowingly should not have taken.” He asked for them back. These privilege claims are Trump’s latest throw-spaghetti-at-the-wall moves, but they almost certainly won’t stick.
So, the first problem with that is that he is no longer the “executive.” Any materials that would be covered by executive privilege are, almost definitionally, presidential records — which should have been turned over to the Archives.
As to the “attorney-client” privilege claim, that could be the same thing if the attorneys to whom he is referring are White House (or even Justice Department) attorneys. Even if not, it’s entirely possible — since the FBI is investigating potential crimes — that the crime-fraud exception would eventually apply. For now, though, I think Kyle’s tweet addressed the concern, given that it appears that a filter team (also called a “taint team”) was used — per the Miami Herald, included here in Lawfare’s coverage. In such a scenario, agents not on the case will actually review the material first to “filter” out any potentially privileged information that it would “taint” the investigation if seen by those on the case.
ON A TOTALLY UNRELATED NOTE: I’ve been thinking about former Trump administration Attorney General Bill Barr bragging about the killing of a criminal suspect by a federal task force under his control before any investigation of the law enforcement shooting took place, all as part of his attempt to paint “Antifa” as America’s clear-and-present danger.
A prosecutor’s review of the 2020 shooting of Michael Forest Reinoehl concluded in 2021 that it was justified, Oregon Public Broadcasting reported, but even that review noted that concerns were justified, given that more than 40 rounds were fired in a residential area by four officers with the task force, which had not informed local law enforcement about the operation.
IN WHICH I SAY NOT-BAD THINGS ABOUT M*CHIGAN: Meanwhile, at Bolts on Friday, Aug. 12, I published an article about four recent Michigan Supreme Court rulings. In addition to the important topic at issue in the cases — youth sentencing — the rulings highlight the importance of state high courts in this era at the U.S. Supreme Court, the politics of Michigan’s high court, and the importance of the upcoming elections.
From the piece:
The Michigan Supreme Court issued a series of critical decisions in late July that will provide new protections to youth who face harsh treatment in the criminal legal system. In repeatedly interpreting the state constitution’s ban on “cruel or unusual” punishments, the court restricted who can get life sentences, and imposed new steps on courts and prosecutors to ensure that kids are actually treated as kids.
Three of the court’s four rulings came down in narrow 4-3 decisions, all along party lines with the four Democratic justices banding together and the three Republicans dissenting. (One Republican crossed over in the final case.)
Check it out.