Trump raid not about classified documents — it’s about Jan. 6
The court-authorized search of former President Donald Trump’s Mar-a-Lago estate is another unmistakable signal that the Justice Department is trying to build a criminal case against him arising out of the Capitol riot.
Ostensibly, the search relates to a long simmering dispute between the former president and the government over Trump’s potentially illegal retention and mishandling of classified information. But don’t be deceived.
National Archives officials alerted the Justice Department months ago regarding missing records and possible classified information violations. That owes to the chaotic atmosphere in which the Trump family decamped to Florida from the White House following the Capitol riot – with impeachment proceedings and even talk of removing Trump from office under the 25th Amendment then underway.
Reportedly, about 15 boxes of records were removed from the White House and shipped to Mar-a-Lago. The National Archives subsequently explained that much of the material should have been kept in the government’s possession, pursuant to the Presidential Records Act. After extensive negotiations, Trump agreed to return some of the materials in January 2022. Upon receipt, National Archives officials advised the Justice Department that the returned materials included classified information.
If true, that raises several issues. If Trump had not declassified these materials while he was president, then his continuing possession of them in a non-secure location was probably illegal. While presidents have unilateral authority to declassify intelligence, they only maintain that authority while in office – it may not be exercised in the post-presidency. The returned documents were thus potentially evidence of crimes. In addition, since it is believed Trump did not return everything that was shipped out of the White House in those hectic days of January 2021, there was significant reason to suspect he continued to retain classified information at Mar-a-Lago.
One of the potential law violations, under Section 2071 of the federal penal code, includes in its penalty provisions that, upon conviction, a defendant “shall forfeit his office and be disqualified from holding any office under the United States.” The ongoing proceedings implicating Trump – in particular, the Justice Department’s investigation and the House January 6 committee probe – seem geared toward undermining his capacity to seek the presidency again in 2024. Obviously, then, there is speculation that DOJ may be mobilizing now in order to trigger the Section 2071 disqualification.
I doubt that. The Justice Department well knows that the qualifications for a presidential candidate are set out in the Constitution. They may not be altered by statute, precisely because the Framers did not want the executive branch to be dominated by the legislature, as would happen if Congress could disqualify incumbent or potential presidents simply by passing a law. The Constitution’s qualifications for the presidency are minimal – one must be over 35 and a natural-born citizen. Being a felon is not a disqualification, so even crimes potentially far more serious than mishandling classified information are not a bar to seeking the presidency.
Moreover, the Constitution also prescribes the basis for disqualifying a person from seeking the presidency or other federal office: conviction by the Senate on an impeachment article voted by the House. Again, what is prescribed by the Constitution may not be altered by a mere statute. To trigger disqualification, Congress would have to impeach and convict Trump; it cannot be done by criminal prosecution.
The Justice Department obviously used the potential classified information as a pretext to obtain a warrant so it could search for what it is really looking for: evidence that would tie Trump to a Capitol riot offense – either a violent crime, such as seditious conspiracy to forcibly attack a government installation (which is highly unlikely), or a non-violent crime, such as conspiracy to obstruct the January 6 joint session of Congress to count electoral votes, or conspiracy to defraud the government.
As previously explained, I believe it would foolhardy for the Biden Justice Department to indict a former president on such debatable non-violent crime charges. That is especially so when it comes to a former president who could be the 2024 Republican nominee, since such charges would fuel the perception that Democrats are using the Justice Department as a political weapon.
That said, let’s assume Attorney General Merrick Garland contemplates bringing such conspiracy charges against Trump. If so, DOJ would need to prove that Trump clearly knew that the 2020 election was not stolen by fraud, yet willfully persisted in deceptive schemes to prevent Congress from counting the state-certified votes that would establish Biden’s victory.
This is why, in recent weeks, the Justice Department has aggressively sought evidence from advisers close to Trump. In June, it executed search warrants on both former Justice Department attorney Jeffrey Clark, who sought to help Trump convince contested states of the false premise that DOJ believed Biden’s victory might be fraudulent; and constitutional law scholar John Eastman, architect of the legal strategy by which Trump unsuccessfully sought to persuade then-Vice President Mike Pence to discount electoral votes from key states won by Biden.
About a week ago, DOJ issued grand jury subpoenas to Trump White House counsel Pat Cipollone, and Cipollone’s deputy Patrick Philbin, who were aware of and reportedly pushed back against Trump’s schemes to undo the election result.
The Biden Justice Department is under enormous pressure from the Democratic base to indict Trump, and it is straining to deliver. But what it is trying to deliver is a Capitol riot case, not a case of mishandling classified documents.
Andrew C. McCarthy is a former federal prosecutor.