The Trump affidavit: Four conclusions on guilt and evidence

Reading the unredacted portions of the affidavit and appendices which the FBI used to search Donald Trump’s Mar-a-Lago residence, leads to some initial conclusions:

The affidavit contains sufficient factual basis for Magistrate Judge Reinhardt to find probable cause to issue a search warrant. The standard for issuing a search warrant is very low, and any federal or magistrate judge would have issued a warrant based on the unredacted information contained in the affidavit. So, Magistrate Judge Reinhardt should not be criticized for his decision to issue the warrant.

The affidavit and the appendices seem exceptionally broad and virtually unlimited. It excludes rooms at the Mar-a-Lago complex used by third parties — guests and members of the club — but extends to virtually every other area where boxes could be stored. The search warrant itself also seems, to me, to be overly broad and inconsistent with the Fourth Amendment’s requirement of “particularly describing the place to be searched and the person or things to be seized.” 

The actual search itself may even have exceeded the terms of the warrant, if it is true that it extended to Mrs. Trump’s personal closet and other private areas, absent evidence that relevant material was stored there.

Most importantly, the unredacted portions of the affidavit do not seem to justify the decision of the Justice Department — as distinguished from the decision of the judge — to seek a warrant, instead of pursuing the subpoena route. There was probable cause for obtaining a search warrant early in the year, yet none was sought. And even when the search warrant was obtained, it was not executed for two days, thus suggesting the absence of real urgency. 

It is precisely because search warrants are so easy to obtain that Attorney General Merrick Garland correctly stated that the Justice Department should seek them only when there is no other reasonable option. The unredacted portions of the affidavit do not seem to meet Garland’s own standard.

Finally, the unredacted portions of the affidavit suggest there may be enough evidence to seek and obtain the indictment of former President Trump. Yet, once

again, the standard for obtaining an indictment is very low. As a former judge of the New York Court of Appeals once said: “A prosecutor can get a grand jury to indict a ham sandwich.”

It is precisely because it is so easy to obtain an indictment that prosecutorial discretion is so important. In order to indict a former president who may well be a future presidential candidate, two unofficial political/legal standards must be met: The Richard Nixon standard, which means that the evidence of a serious crime must be so overwhelming that even members of the former president’s own party would support an indictment; and the Hillary Clinton standard, which requires the Justice Department to distinguish President Trump’s alleged wrongdoing from Hillary Clinton’s handling of State Department emails that led to a 2016 FBI investigation of her conduct — meaning that Trump’s conduct in this instance must be far more deserving of criminal punishment than Clinton’s.

As a pure matter of technicality, there probably was enough evidence to secure an indictment of Hillary Clinton; a grand jury would certainly have accepted a prosecutor’s decision to do so. But the decision was made not to seek an indictment in her case. That was the correct decision back then — and it would be the correct decision now, too, if the evidence is no greater than that present in the redacted affidavit. It is possible that the redacted portions would provide evidence that satisfies the Nixon and Clinton standards — but the unredacted portions do not seem to do so.

All of these conclusions are based on a quick preliminary review of the unredacted portions of the affidavit; my views may change, depending on whether more information is forthcoming. But based on what I have read, and my 50 years of experience in reading similar documents, these are my conclusions.

Alan Dershowitz, professor emeritus for Harvard Law School, served on the legal team representing President Trump in his first Senate impeachment trial in 2020. Dershowitz is the author of numerous books, including his latest, “The Price of Principle.” He is also the host of The Dershow on Rumble. Follow him on Twitter @AlanDersh.