Earlier this week, the FBI raided President Trump’s residence in Mar-a-Lago, Florida. Was the raid legal, and if so, was it prudent? Or was this just another political witch hunt and an unprecedented weaponization of the Justice Department against a political opponent? The stakes are high, so we need answers.
Details are still forthcoming, but here’s what I know right now. After President Trump left office, the National Archivist claimed that Trump took documents with him that should have been turned over to him. In fairness to the Archivist, it has been the law since 1978 that all documents that the President writes in the course of his duties are property of the United States, not the President, and need to be turned over to the Archivist when he leaves.
However, Presidents are allowed to keep personal documents and copies of (many) official documents, even if the originals had to go to the Archivist. Also if some of the documents turned over to the Archivist are subject to the President’s constitutional privilege, then the Archivist may not release them to the public.
So was the federal government entitled to recover the documents from Trump? I’ll give you the classic lawyer answer: it depends. Were they personal documents or copies of official documents? If so, then presumptively, Trump was entitled to keep them. If they were originals and official, then they should have been returned.
The problem at this point is that we do not know the answer to these questions. While on the one hand, it’s not unprecedented for law enforcement to decline to comment on a pending investigation, think of the practical consequences of not commenting on this case.
For the first time in American history, law enforcement conducted an unannounced raid of an ex-President’s papers while he wasn’t home. After the Russia hoax and two failed impeachment proceedings, the Democrats are 0-3 in the Trump Witch Trials.
Might the American people perceive this as Trump’s fourth witch trial? You’d better believe it.
While many on the Left are cackling like schoolgirls at the thought of Trump being prosecuted, many on the Right view this as a pure political prosecution. How will independents perceive it? Many non-political friends of mine who are not fans of Trump are saying that they’re perceiving this as a witch hunt.
Even left-leaning folks are calling this out. Andrew Yang, who ran for President in the Democratic Primary in 2020, warned that the raid strengthened the perception that the corrupt government establishment is unjustly persecuting Trump.
Allen Dershowitz, a liberal law professor who at times has taken Trump’s side when he believes Trump was treated unfairly, claimed that the Justice Department should have subpoenaed the documents instead of raiding his home, which may have violated Trump’s Fifth Amendment rights.
Finally, Ankush Khadori, a former federal prosecutor who appears to be suspicious of Trump, called out the Justice Department in a New York Times op-ed for being so secretive about the raid.
I too share the suspicions that this is a pure political prosecution. The Democrats have had a bad track record of going after Trump for meritless accusations.
Since they have failed to achieve any major policy achievements in nearly two years, and since midterms are right around the corner, I think they’re desperately trying to do something that will get people fired up to come vote for them.
Since they can’t brag on any achievements of their own, they’re falling back to the one card they’ve played for the last six years: ORANGE MAN BAD.
Jumping back to the legal analysis, I think Professor Dershowitz is spot on. If indeed Trump wrongfully took documents with him when he left, why not resort to a less drastic step to get them back? Why not subpoena them, or explore the possibility of a civil replevin suit?
Those are less drastic steps than essentially kicking down the man’s door and going through his stuff while he’s away. By resorting to the most drastic option, the DOJ decided to swat at a fly with a hammer, and it broke many things in the process.
Like Khadori, I think, at the very least, the DOJ needs to be transparent with what it was seeking, demonstrate that it had probable cause, and most importantly, that the drastic and unprecedented step of raiding Trump’s home was absolutely necessary.
If it can’t, then the DOJ’s reckless actions to fire up the Democratic base will only solidify the conviction in the mind of the people that this is a political raid by a politicized Justice Department.
As for me, that’s what I’m thinking too.
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