When two dozen or more FBI agents searched former President Trump’s residence three weeks ago, most Americans initially were left wondering what in the world must Trump have done. After all, a prodigious FBI search logically indicates an equally prodigious violation of some federal statute; therefore, it must be really serious. One former Department of Justice (DOJ) official told Politico that the evidence sought “was likely so pulverizing in its force” that it would “eviscerate” the possibility of the optics for such an invasive law enforcement action not being good.
Well, it’s now pretty official: The optics aren’t good.
Everyone in America, from plumber to president, is constitutionally protected from a government search that lacks adequate cause.
We now know why the DOJ wanted the affidavit — which is supposed to articulate the probable cause needed for a legitimate search — to be kept under seal. After the magistrate who authorized the search forced the DOJ to unseal a redacted version, two realities came into better focus.
First, the affidavit confirmed that the FBI’s investigation was triggered in January 2022 at the request of the National Archives, which wanted certain documents, especially classified documents, that it considered to be presidential records to be turned over to it by Trump. Second, from what I have seen, I don’t believe the affidavit articulates how a federal law was or is being broken. For those who hold out hope that the affidavit’s redacted sections fill that gap, there is almost no chance that they do. (More on that below.)
As to the first point, this matter is, as suspected, nothing more than a document dispute that was chugging along, appropriately, as a negotiation behind the scenes and apparently making some progress. I don’t see anything in the affidavit asserting a refusal by Trump to cooperate.
Any clinging hope — in certain quarters — that the affidavit possessed “pulverizing” cause to believe Trump was engaged in a truly serious federal violation can — I think — be considered dashed. The pipe dream that Trump was engaged in espionage, actively providing secrets to an enemy I think is as fanciful as the Steele dossier’s Moscow hotel bed reverie. And, no, I don’t believe a smoking gun of espionage or something equally shocking will be in the redacted sections. If the FBI had that, it would have fronted that in the unredacted portions.
As to the second and more important point, the affidavit’s probable cause statements focus on only half of what is needed to show a possible violation of the federal statutes that are cited in the warrant. The affidavit does a reasonable job of establishing cause to believe Trump possessed a range of classified materials — or at least once-classified materials — and that those materials were located in his residence.
But that’s not all that’s needed — in this case in particular. A criminal violation of those statutes only exists if it can be established that the person being investigated was not authorized to possess, store, transfer or copy those documents. This is an easy element to establish against anyone in America. Except one person.
The unredacted parts of the affidavit make no attempt to articulate cause that Trump was not authorized to have these documents in his home. The reason is that, as president, he had broad, legally intimidating authority, established by law and court determinations, to declassify any and all documents and to determine what is and is not a presidential record. Trump and his legal team have asserted that this authority was exercised while he was still president. Therefore, a violation of these fairly low-level and seldom-prosecuted document-oriented statutes cannot be proven.
I don’t think there’s much chance that the affidavit’s redacted portions contain some novel legal theory undercutting this broad, well-established presidential authority. Affidavits for intrusive searches of a private home — the most extreme action the government can take against a resident of the United States, short of arrest — are not the place for advancing theories. Probable cause must be built on facts.
The redacted sections are considerable. Redaction is supposed to be utilized only to protect sensitive methods and techniques — in other words, how the government came by its information that it doesn’t want to publicly divulge so it can keep using those tactics or protect providers of information. A good and prudent example would be the use of confidential human and/or technical sources. A bad example would be citing press reports, a la the Carter Page Foreign Intelligence Surveillance Act affidavit.
The redacted portions therefore, normally, will simply cover how the FBI supported its assertions in the unredacted sections that Trump possessed classified materials in his residence — i.e., what confidential or sensitive sources were used to establish those facts. Don’t expect anything more.
The situation does not look good for the government. The Ivy League-educated attorneys of the DOJ had to know this adventure had little chance of an eventual successful prosecution. The use, therefore, of a highly intrusive search of a home simply as a forcing function to retrieve documents for the National Archives — and then not follow through with actual charges — spikes the potential abuse needle dramatically and will not help quiet the growing suspicion that this was more of a political hitjob to take Trump off the chessboard than it was the pursuit of blind justice.
I am often asked if the FBI had no choice but to pursue the National Archives request and open a case. Yes, it had a choice and, no, it didn’t have to open this investigation. The FBI declines to initiate cases involving more serious violations all the time.
The platitudinous justification from Democrats is “No one is above the law” — but we know that’s not true. The last time the Democrats controlled the DOJ, Hillary Clinton was set high aloft and placed out of reach of “reasonable” prosecution by then-FBI Director James Comey with the concurrence of the DOJ. Even Comey noted that she was clearly not authorized to possess highly classified documents on a private server.
Politicians on both the right and left say bombastic things that inflame passions and drive opposition attempts to eliminate competition. But involving our justice system in politically tainted efforts can never be tolerated. No citizen of this land, no matter who they are, should be subjected to a law enforcement action where there is an absence of evidence that anything illegal occurred.
Kevin R. Brock is a former assistant director of intelligence for the FBI and principal deputy director of the National Counterterrorism Center (NCTC). He independently consults with private companies and public-safety agencies on strategic mission technologies.