FBI Raid on Trump’s Residence Explained
TLDRUpFront: The FBI search on former President Trump’s residence last night doesn’t appear connected to subverting & obstructing the 2020 election or inciting an insurrection. Mishandling of Presidential records, including possible classified documents, may end up creating an “Al Capone” outcome for President Trump where. Beware the librarians!
Cue first verse of ‘All Along the Watchtower.’
FullContextInTheBack:
The FBI executed a search warrant raid on former President Trump’s Mar-a-Lago residence last night. The context of this raid is not what most people might think. From 2020-2021, and especially with the JAN 6 House Hearings, of the myriad criminal challenges President Trump faces, the two most well-known are subverting & obstructing the 2020 election and inciting the insurrection. Both were covered extensively in this two-part MegaMullet: Impeachment’s Indictment is Insurrections Incitement Part I and Part II.
This raid deals with improper handling of Presidential records and potential criminal mishandling of marked national security documents. For context, governmental records, especially Presidential, may be created by people but belong to “the People.” The 1978 Presidential Record Act is the legal authority for record retention[1] and designates the National Archives & Records Administration(NARA) as the primary agency for this law[2]. Executive office attempts to exert prerogative looks like an executive-order roundabout with President Reagan issuing EO12667 to comply with the law. President Bush II, who had strong feelings about transparency, then revoked that EO replacing it with his own narrowed-down EO13233. And not to be left out, President Obama revoked Bush-the-Deuce’s EO 13233, with EO13489 restoring most of EO12667[3]. Clear? Great. We move on.
The disputes between Reagan, Bush, and Obama look like librarians arguing over how to sort the card catalog compared to Trump’s. His apparent preference for record preservation is more like Caesar’s burning of the Library of Alexandria. From the beginning of his administration, paid staffer’s primary job was to tape back together official documents Trump tore up into tiny pieces and tried to throw away[4] or flush down the toilet[5]. Trump denies these allegations claiming he only has “perfect flushes, only the best!” but there are more serious allegations than just disposing of notes with a number one about his record handling [6] and copies of taped-together documents supplied by NARA to the JAN 6 Inquiry[7].
Incoming memes in 3…2…1….
The timeline of last night’s raid begins not with the 2020 election JAN 6 Insurrection but on February 7th, 2022. On that day, Trump’s team provided 15 boxes of material to NARA instead of on or after January 20th, 2021. Including apparently, some national security documents marked SECRET and TOP SECRET among normal Presidential memorabilia.
As we all learned from former Secretary Clinton’s fiasco, mishandling government documents is a no-no; and mishandling national security documents is something that will bring the FBI running. They have proponency for investigating breaches of national security in almost all cases – and often, the military will even bring in the FBI to conduct investigations. Last night’s raid appears to be seeking more documents or evidence of classified material mishandling that may be present in the former President’s residence. Conducting a raid now also avoids the “60-day” guideline. Though never a law, the DoJ traditionally tries not to make significant investigative activities against major political figures within sixty days of a key election.
To be clear, however, as we also learned in the Clinton email scandal, Blue and Red Commenterati can release enough hot air to put a vaping competition to shame without ever understanding the key elements of the difference between being a liar and committing a Federal crime.
For a TLDR, Clinton’s email scandal arose from multiple legitimate investigations arising from administrative, FOIA, and criminal concerns. These occurred after she had left government employment as Secretary of State. The provision of the emails (eventually) settled the FOIA concerns of the Federal courts. The administrative investigation findings were that, had she still been a government employee, she would have been subject to sanctions. Because she was not, she could not be “administratively” punished.
That left the FBI investigation into potential criminal mishandling of national security materials as the only remaining investigation. Clinton lied to the public about her emails and investigations. The FBI, and no less an authority than myself, wrote as much when covering these scandals during the heat of the 2016 Presidential campaign pitting Clinton against Trump[9,10,11].
Then for Clinton, and now for Trump, the standard of criminal activity is not based on the lung capacity of Red or Blue ideological vapers expelling vapors. Instead, four criteria must be met for the FBI to recommend a criminal investigation to the DoJ over the mishandling of national security documents:
- Two or more of the following four elements must be present in the case:
- clearly intentional and willful mishandling of classified information
- vast quantities of materials exposed in such a way as to support an inference of intentional misconduct
- indications of disloyalty to the United States
- efforts to obstruct justice.
- The two or more criminal elements must be provable beyond a reasonable doubt.
- These elements must be the direct actions or undertaken upon the directions of the suspect in question
- For Trump to be charged with this crime, that person in #3 must be Trump.
Before the Applebee’s vetbros or Whole Food’s progressives descend on me to bespawl, “that one case where that guy got prison time for this one simple thing,” or “Clinton did nothing wrong,” do me a favor first and find the FBI press releases relevant to the cases in question and post it. The FBI is very good at summarizing the totality of the elements of a case – elements that often get lost in the heat of ideological passion.
And understanding those four criteria helps one navigate these cases and understand why one may or may not be charged. The criteria help with Clinton, who, although clearly mishandled classified information, did not do it in vast quantities, with an indication of disloyalty or obstructing justice. One element of the four does not an indictment make. All famous or infamous cases have two or more elements of those criteria. For example, former General Patreus mishandled classified information AND lied to the FBI, obstructing justice. Also, regardless of criteria, if someone takes a plea deal, the elements do not matter. Confessing a crime is like that, as Patreus[8] and former General Flynn found out[12].
And these criteria will help again with former President Trump. There must be evidence beyond a reasonable doubt that Trump himself took or directed actions that fit two or more elements of the crime.
But the danger for mishandling records for Trump isn’t just from potential national security violations. There are missing documents in the NARA archives related to phone calls Trump and his advisers may have made from the White House during the hours of the 6 JAN Insurrection. If those are found in his possession, that’s potential obstruction of justice. More generally any intentional destruction of preservable records may lead to a consequences which seem light at first but have a specific ticker for anyone considering future office(emphasis added): “Any custodian of a public record who “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys (any record) shall be fined not more than $2,000 or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.“[13]
Al Capone was a mafia boss who either killed or ordered the deaths of dozens, but it was failing to file the proper paperwork with the IRS sent him to jail. Despite strong cases built for subversion and obstruction of election results in Georgia and at the Federal level, and with an increasingly strong case of Trump inciting insurrection, it may be that “perfect flush” that does him in.
Even if paraphrased, Lewis Carrol’s eternal warning seems still relevant: “Beware the librarian, my son! The records they archive, the cards they catalog!”
[1] https://www.archives.gov/presidential-libraries/laws/1978-act.html
[2] https://www.archives.gov/files/guidance-on-presidential-records-from-the-national-archives-and-records-administration-2020.pdf
[3]https://en.wikipedia.org/wiki/Executive_Order_12667
[4] https://www.politico.com/story/2018/06/10/trump-papers-filing-system-635164
[5] https://www.politico.com/news/2022/02/10/trump-denies-flushing-documents-down-white-house-toilet-00007710
[6] https://www.lawfareblog.com/trumps-presidential-records-act-violations-short-and-long-term-solutions
[8] https://www.justice.gov/opa/pr/statement-justice-department-criminal-charges-against-david-petraeus
[9] Summary of Clinton email investigations: https://www.facebook.com/tim.clancy.313/posts/pfbid0A7a6oFUfXHcsvUtpnXpgTHP7GUVNfjHHPLL3j53zNKYNZrQjxGmaYBhBEy2bHE9gl
[10] Deconstruction of Comey’s statement of no-indictment” https://www.facebook.com/tim.clancy.313/posts/pfbid02VJCkn3TWA5bWzLLXCqdhm67k5zmJut6SRR6d8xVa5CSwSMH3TWDoTyN6EFofwTr1l
[11] More Clinton email coverage: https://www.facebook.com/search/posts?q=clinton%20email%20elements%20of%20crime&filters=eyJycF9hdXRob3I6MCI6IntcIm5hbWVcIjpcImF1dGhvcl9tZVwiLFwiYXJnc1wiOlwiXCJ9In0%3D
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