Is the FBI as stupid as it wants us to believe? Or is there more to the Mar-a-Lago search than Merrick Garland’s department is admitting?
Is the FBI as stupid as it wants us to believe? Or is there more to the Mar-a-Lago search than Merrick Garland’s department is admitting?
E verything to do with Donald Trump must be not only outrageous, but also ridiculous. If the reporting thus far on the FBI search of Mar-a-Lago is to be believed — always a very big if in any Trump-related story that leans heavily on anonymous sources — the Justice Department has really stepped into a mess that it didn’t think through, while Trump is reacting giddily to being thrown in the briar patch.
According to William Arkin of Newsweek, “two senior government officials” with “direct knowledge of the FBI’s deliberations” told him that the FBI’s decision to search Trump’s home, planned in “the FBI Miami Field Office and Washington headquarters,” was “based largely on information from an FBI confidential human source, one who was able to identify what classified documents former President Trump was still hiding and even the location of those documents.” If Arkin’s sources are as described, one is “a senior Justice Department official who is a 30-year veteran of the FBI,” and the other is “a senior intelligence official who was briefed on the investigation and the operation.” These are presumably veteran civil servants, but those descriptions don’t preclude the possibility that they are current political appointees. What is it that those sources want known?
First of all, that they tried to keep this as a low-profile event and failed spectacularly at doing so:
The raid of Donald Trump’s Florida residence was deliberately timed to occur when the former president was away. . . . FBI decision-makers in Washington and Miami thought that denying the former president a photo opportunity or a platform from which to grandstand (or to attempt to thwart the raid) would lower the profile of the event. . . . “What a spectacular backfire,” says the Justice official.
Second, they insist that the entire thing was about recovering documents and not building any sort of criminal case against Trump on other grounds:
The FBI [was] solely intent on recovering highly classified documents that were illegally removed from the White House. . . . The FBI feared that the documents might be destroyed [if not recovered. The search was justified by] a search warrant to obtain any government-owned documents that might be in the possession of Trump but are required to be delivered to the Archives. . . . Concerns about the illegal possession of classified “national defense information” are the basis for the search warrant. . . .The raid had nothing to do with the January 6 investigation or any other alleged wrongdoing by the former president. . . .
In late April . . . a federal grand jury began deliberating whether there was a violation of the Presidential Records Act. . . . In the past week, the prosecutor in the case and local Assistant U.S. Attorney went to Florida magistrate Judge Bruce Reinhart in West Palm Beach. . . .The affidavit to obtain the search warrant [detailed] that investigators had sufficient information to prove that those records were located at Mar-a-Lago — including the detail that they were contained in a specific safe in a specific room.
A New York Times report by Maggie Haberman, Ben Protess, and Glenn Thrush says that the search was for documents “so sensitive in nature, and related to national security, that the Justice Department had to act” and that FBI also left a manifest of what was taken. Nobody has yet disclosed the actual contents of the search warrant; a copy would normally be left with Trump or his lawyers, along with a manifest of what was taken. In his press conference today, Garland said that this was done. Trump evidently prefers not to disclose it and claims (preposterously) that no copy was left. Garland says that the Justice Department is making a motion with the court to unseal the warrant. He did not, however, say anything about unsealing the affidavit used to obtain the warrant.
Third, the Newsweek sources say that this was not really a “raid” on the residents of Mar-a-Lago in the sense that you might picture an unannounced intrusion, but it was, nonetheless, a big operation. Trump wasn’t home. Three dozen agents arrived at 9 a.m. Monday, accompanied by Palm Beach cops and met by the Secret Service protective detail. They were there for ten hours, focused their search on “a bedroom, an office and a storage room” and removed “some 10-15 boxes of documents.” “A Secret Service source . . . said the Secret Service director was given advance warning and was later told the specifics of the raid.” The Wall Street Journal says that the agents who searched Mar-a-Lago were in plainclothes (“T-shirts and cargo pants”) and unarmed, so as to keep this low-key.
Fourth, the sources are eager to distance the political decision-makers from the search, but their denials are carefully worded and now seem undermined by Garland’s own admission that he signed off on the decision to seek the warrant:
The Biden White House says the president was not briefed about the Mar-a-Lago raid and knew nothing about it in advance. . . . The senior Justice Department source says that Garland was regularly briefed on the Records Act investigation, and that he knew about the grand jury and what material federal prosecutors were seeking. He insists, though, that Garland had no prior knowledge of the date and time of the specific raid, nor was he asked to approve it. . . . FBI director Christopher Wray ultimately gave his go-ahead to conduct the raid.
Alex Leary, Aruna Viswanatha, and Sadie Gurman of the Wall Street Journal add further detail. First, the search was preceded by a meeting on June 3, at which “a senior Justice Department national security supervisor and three FBI agents arrived at former President Donald Trump’s Mar-a-Lago home in Florida to discuss boxes with government records sitting in a basement storage room.” Trump himself even dropped by the meeting and told them, “Anything you need, let us know.” They came away satisfied, but nonetheless sent Trump’s lawyer a document-retention notice — a standard but subtly ominous legal notice to hold onto the documents and destroy nothing. Then, “in the following weeks . . . someone familiar with the stored papers told investigators there may be still more classified documents at the private club after the National Archives retrieved 15 boxes earlier in the year,” leading “Justice Department officials” to think they were being lied to — never a great way to handle federal investigators. On June 22 — it is not clear whether this was before or after the tip to the FBI — the Trump Organization “received a subpoena for surveillance footage from cameras at Mar-a-Lago” — presumably from the DOJ; the article doesn’t say — and turned it over.
Neither article quotes any named source on the record, aside from the denials by the White House of the president’s advance personal knowledge of any of this. The Journal and Times reports give no indication whatsoever of their sourcing.
What to make of all this? We have another whodunit on our hands. My baseline suspicion of the political incentives of the Biden White House and the Garland Justice Department is that they want it known that there are aggressive steps being taken to investigate Trump, because it helps them with three different audiences. With Democrats, who are discouraged with this administration, it shows that they are being tough on Trump. With independents, it changes the subject to Trump and away from the many policy areas in which they disapprove of the job Biden’s doing. With Republicans, a Trump vs. the Feds fight elevates Trump and helps Biden pick his weakest 2024 opponent, precisely the strategy his party has been using relentlessly in Republican primaries in 2022. At the same time, Trump has every incentive to trumpet this because it helps him with Republican audiences and keeps him in the news, and he doesn’t care about anything else.
With that as background, begin with the possibility that this all went down as Newsweek and the Journal and their sources claim: The DOJ and FBI were pursuing a narrow inquiry into missing documents without the involvement of senior political people and thought they could keep a search of Mar-a-Lago quiet. If so, they catastrophically misread their man and must not have consulted anyone who has read the news in the past six years. Trump himself immediately publicized the search and started fundraising off it. He also used the opportunity to whip up anger against the investigators and claim that they might be planting evidence — a preview of the well-poisoning approach Trump would take if he was ever charged with anything.
Consider also what the attorney general knew. Newsweek’s phrasing was careful: “Garland was regularly briefed on the Records Act investigation, and that he knew about the grand jury and what material federal prosecutors were seeking” but “Garland had no prior knowledge of the date and time of the specific raid, nor was he asked to approve it.” Of course, once a warrant is obtained, it has to be executed within a fairly short window of time, but “the date and time of the specific raid” will typically be up to the FBI, not the prosecutors. Newsweek’s sources do not deny that Garland approved the decision to seek the search warrant for Mar-a-Lago, only that he didn’t approve “the specific raid.” At his press conference, he confirmed that he signed off on seeking the warrant.
Garland, of course, is a political appointee who is doubtless well-versed in what the White House’s political needs are, whether or not he formally or informally discussed the Trump investigation with the president or with the people who run the Biden White House. His decisions are effectively the decisions of the president, given that he acts on the president’s authority.
Bear in mind: High-level figures in the federal government typically do not get involved in individual criminal cases, nor should they. For the most run-of-the-mill federal prosecutions, decisions are made by assistant United States attorneys or prosecutors at Main Justice headquarters and approved only by their direct superiors. But the bigger the case, the more levels of approval are involved. And hardly anything is bigger than an investigation of a former president. The attorney general would not be doing his job if he was not overseeing such an investigation, unless he has been formally recused from it.
Is it really plausible that Garland was so ignorant of the political needs and familiar patterns of behavior of both Trump and his own administration that he thought this would not be an immediate front-page political firestorm, one in which leading Democrats would leap into the fray to declare, yet again, that Trump’s criminal prosecution for all manner of things was imminent? If so, he’s a bigger fool than any of us guessed.
Now, consider a second possibility: If the search was really the result of a tip from inside Mar-a-Lago that offered the FBI a detailed and irresistible bread-crumb trail to specific boxes in specific rooms, was it a set-up? Did Trump, or someone in his orbit, want an FBI search precisely to set up what followed it? It seems a little too clever to be Trump’s idea, but there may be enough conspiracy-minded Roger Stone types around Trump that one of them either pitched Trump on it or did it on his own initiative, heedless of the fact that handing over evidence of a potential federal crime to the FBI is playing legal Russian roulette in the hopes of winning a political battle.
Third, was this search really just aimed at retrieving classified documents, and if so, was that really all that three dozen federal agents found in ten hours? Andy McCarthy has argued that, most likely, the classified documents were a pretext, and the FBI was looking for something else. That theory is bolstered by the FBI’s seizing the cellphone of Representative Scott Perry the next day as part of the January 6 investigation. There is also the theory that a search this broad might have turned up incriminating evidence against Trump that nobody went in specifically looking for.
I have some skepticism. Even if you think of Trump as a man of many crimes, this isn’t like a raid where you’re going to find piles of cocaine and Tommy guns with the numbers filed off just lying around. Mar-a-Lago is a big place (I confess that I picture Trump’s personal safe as looking something like Scrooge McDuck’s vault, although it apparently is just a normal safe). Trump wasn’t there, so it seems unlikely that his cellphone was confiscated. Financial records are unlikely to be a target: The IRS, the Manhattan district attorney, and the New York attorney general have had all sorts of Trump financial documents for years and have never made much use of them. The Times report suggests that the agents took away a fair number of empty envelopes that they’d prepared, suggesting that they found less than they arrived looking for. Trump isn’t much of an email user. His DVR probably just shows that he watched a lot of Fox, Newsmax, and OANN during the times in the fall of 2020 that he was in Florida. The idea that he had some sort of Beer Hall Putsch memo lying around that nobody has seen yet strikes me as fantastical. Frankly, the “stop the steal” people around Trump in 2020-21 seem scarcely to have bothered covering their tracks, as evidenced by the Eastman memos.
All of which leaves us with the distinct possibility that Garland is seriously considering a Trump indictment limited to a violation of the Presidential Records Act. But precisely because nothing was ever done to Hillary Clinton for mishandling government secrets on her personal property, that would be a terrible idea.