The Trump Mar-a-Lago search was justified

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Ever since news broke two weeks ago that the FBI had executed a search warrant on former President Donald Trump’s residence at Mar-a-Lago, the political world has been aflame with hyperbole, accusations, innuendo, and hysteria.

Every legal pundit and pundits pretending to know something about the law have emerged to try and explain what is really happening here. And the former president and his allies, as is their custom, have sought to flood the zone with political justifications and haphazard legal explanations to deflect from his conduct.

The truth needs to be set forth plainly and simply, and so let’s get down to brass tacks here. What happened on August 8, 2022, was not tyranny. It was not political persecution. It was not a minor dust up over bureaucratic processes blown out of proportion. It was the criminal justice system operating just like it does with any other private citizen on any other given day ending in a "y."

Trump was the president and commander-in-chief up until noon on January 20, 2021. The moment Joe Biden took the Oath of Office, Trump became just another private citizen in his 70s who vacations in Florida during the winter months to avoid the bitter cold back in his native home in the Northeast. He was no longer shielded by any privileges or protections of the Office of the Presidency at the point beyond physical security protection. He is subject to the laws of the United States just like anyone else.

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What also is true is that Trump had particular legal obligation as the former president to properly turn over presidential records to the National Archives and Records Administration. That is mandated by the Presidential Records Act because those records are the property of the United States. They are not Trump’s personal property.

In a competent White House, this process would have started within days of his election loss and would have been completed well in advance of his departure for Florida on January 20, 2021. It was not.

Trump spent his final two months desperately trying in the courts, and later through state legislatures and ultimately the January 6, 2021 rally, to reverse his election loss. Document archival was not high on his priority list.

The result was apparently more than 25 boxes’ worth of presidential records were shipped to Florida and stored in a basement at Mar-a-Lago. If this were a mere issue of simply recovering unclassified presidential records, though, there likely never would have been a criminal element to this matter. But buried into those boxes were countless properly marked classified documents. Those documents lacked any markings indicating that Trump had ever declassified them. No actual substantiated evidence indicates Mr. Trump ever declassified them. No one viewing those records would have any reason to view them as anything other than properly classified documents.

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The government tried to recover the documents peacefully and quietly. They spent one year discussing the matter with Trump’s staff, and 15 boxes were sent back to NARA in February.

After identifying more missing records, the government returned in June with a subpoena and found more boxes of records that should have been returned. Both times, properly marked classified documents – up to and including documents marked as Top Secret and requiring Sensitive Compartmented Information access eligibility – were located within the boxes.

A Trump lawyer swore out an affidavit promising there were no more documents. The government gathered evidence that the Trump lawyer was not being truthful, and on August 8, 2022, a court-authorized search warrant was executed that, sure enough, located several more classified documents.

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That is not an abuse of law enforcement processes. That is how the law works.

You cannot remove properly marked classified documents and place them in a location not authorized for retention of classified documents. You cannot obstruct a federal investigation seeking to lawfully recover those documents. You cannot present false statements to federal investigators.

Our jails are filled with people who have gone to jail for less. Search warrants are executed on properties and residences every day by local, state and federal law enforcement authorities in a manner no different than what happened at Mar-a-Lago. Those individuals’ lawyers also are not permitted to impede or micromanage the execution of the warrant, just as Trump’s lawyers were not permitted to do so.

Those search warrants also tend to result in agents rummaging through areas that contain personal items but which fall within the scope of the search warrant, just as happened at Mar-a-Lago. The individuals subject to the search warrant also are not permitted access to the underlying probable cause affidavit unless and until there is an actual criminal indictment. Trump is not special in that regard.

None of this means former President Trump will ultimately be indicted. He very well might be, and other individuals who removed properly marked classified records from secure locations have been prosecuted and sent to prison for that offense.

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If Trump is indicted, he will have access to the full criminal justice process and can make every declassification defense he wishes at that time in pre-trial motions.

Until that time, let the justice system run its course.