As a former U.S. Attorney with a criminal justice career that spans decades, I find it remarkable that some in the legal profession are already willing to close the case on the FBI warrant to search former President Donald Trump’s Mar-a-Lago home based on the heavily redacted affidavit.
The unredacted portions of the affidavit attempt to convince the reader that the Department of Justice is on good and legal footing. But unless the redacted portions contain some sort of bombshell, this warrant could only ever be upheld because the probable cause standard has sunk well below what our founding fathers believed they were enshrining within the Bill of Rights.
Here are five things we learned from the Mar-a-Lago affidavit.
First, there is little effort spent addressing the significance of apparent exculpatory evidence and mitigating facts. While it includes a letter from Trump’s lawyers, it does not acknowledge potential advice of counsel defense or any authority to bring such a case against a former U.S. President, or even refute the issues raised by Trump’s lawyers in any meaningful way.
Surprisingly, in a case seeking to tread this kind of new legal ground, there is no accompanying memo from the DOJ’s Office of Legal Counsel defending its legality. Further, the affidavit references the applicable law but withholds any mention of court decisions regarding a U.S. President’s unfettered ability to declassify documents, and it fails to inform the Court that a former U.S. President may fall outside the criminal statute.
Second, it’s hard to find criminal intent anywhere in the unredacted affidavit. If it’s in there, it is redacted since no visible language alludes to any individual “willfully” retaining documents or otherwise violating the laws that the FBI alleges have been broken.
To the contrary, the affidavit includes instances of the return of boxes of material to the U.S. government, and the affidavit reads more like a document dispute in a civil case in which lawyers for both sides conduct a back-and-forth chalked full of legal arguments.
Third, we still do not know who the target—or targets—of this warrant are. The affidavit is filled with conclusory statements such as “there is probable cause,” but the unredacted language gives absolutely no reference to whom the probable cause applies.
Clearly, the location of the warrant suggest that the FBI may be going after President Trump. But the lack of any evidence in the unredacted portions directly implicating him criminally, as well as the government’s failure to address significant legal issues uniquely surrounding a former president’s authority, mean that he may not be the only one targeted (or indeed may not even be the one at all).
Fourth, perhaps nowhere do the redacted portions have more work to do than the alleged evidence of obstruction. In the unredacted sections, the FBI acknowledges the return of 15 boxes of materials and ongoing communications with Trump’s lawyers attempting to resolve any outstanding disputes regarding which, if any, remaining documents ought to be turned over. This would appear to provide evidence of cooperation with authorities, rather than obstruction.
Fifth, the unredacted portions still do not answer the question “why now?” Timing is a critical piece of any warrant. While one would expect much of that to be answered in the redacted portions, there is nothing in the unredacted sections to suggest why the FBI felt that it needed a warrant and needed one now.
Admittedly, the legal bar here is quite low. However, as this potential case plays out in the court of public opinion, Americans will rightly want to know why simply asking a former president, who was already working with authorities on this matter, for any outstanding materials was not sufficient.
This, unfortunately, is where this case gets all too ordinary. Frequently, probable cause barely slows investigators, with courts finding it in even somewhat questionable places, as it appears from the unredacted sections they may have here. That’s why, in instances like this, the FBI needs to spend more time considering “if” they should pursue a warrant, not simply whether they “can” take advantage of an overly generous reading by a magistrate.