On August 8, The FBI executed a search warrant at the Florida home of former president Donald Trump. This act presents a lot of problems.
As of this writing, there is no official statement from the Department of Justice announcing the warrant. Reporting suggests that the warrant relates to Trump’s retention of documents from the period when he served as president.
To get the warrant the DOJ had to make a presentation to a United States Magistrate that there is probable cause that a crime was committed, that a subpoena from a grand jury would be an inadequate method of recovering the retained documents because the documents would be destroyed between the time the subpoena is served and its return date. That process succeeded and a warrant was issued.
To be clear, the retention of documents is a crime under Title 18 United States Code Section 2071 if Trump retained them. Such documents belong to the government and not to Trump.
The statute proscribing the retention of government records is a specific intent crime. To prove the crime, the government must prove beyond a reasonable doubt that Trump intentionally and willfully retained each and every document and identifying each one.
Complicating the matter is the fact that Trump’s lawyers have been going back and forth with the National Archives and Record Administration (NARA) for many months to negotiate a return of fifteen boxes of documents resulting in the delivery of the boxes to NARA.
“Boxes” is not a good way to identify documents. During the negotiation with Trump’s lawyers NARA created two inventories, the first listing unclassified documents and the second describing the classified documents in an unclassified inventory.
The exceptional act of a search warrant on the premises of a former president for a Section 2071 offense appears to me to be excessive. While retaining government documents is a crime, it is not exactly a hanging offense.
There are numerous cases of officials taking documents home and even stealing them. None resulted in serious consequences for the defendants in previous Section 2071 cases.
I want to make it clear that these comments are based on the assumption that the warrant’s objective was to seize improperly retained government documents. It’s an assumption. And it is true that on several occasions in 2016, Trump said, “Anyone being investigated by the FBI is not qualified to be the President of the United States.”
The several criminal investigations of Trump other than this one portend grave damage to the republic. A Section 2071 violation does not.