Briefly Noted: Andy McCarthy Sees It My Way, Too

Let’s get started this morning with what I take to be confirmation of the overall perspective that was presented here yesterday.

I know some readers take offense at quotes of anti-Trumpers like McCarthy, John Hinderaker, and others when I insert them in posts here. Nevertheless, these are people who know what they’re talking about in specific areas of expertise. I take insight from any source I can find it—as the saying goes, even a broken clock is right twice a day. I do this selectively and critically, but if some with whom I disagree—and there are many such—expresses an insight better than I’ve done, then I’m happy to use their work. Not to do so would be foolish.

That said, McCarthy has written an article for NRO, the relevant part of which is summarized at Red State (The Big Problem With the Trump Warrant). You’ll recall that in The Continuing Coup I wrote in relevant part:

There are, in effect, two types of laws governing the records that were seized in the MAL Raid. The first type is singular, i.e., there’s just one law of this type and it pertains specifically to the President—the Presidential Records Act.

The second type of laws are those cited in the warrant—”traditional” laws governing the handling of government records of various sorts:

18 USC 2071 — Concealment, removal or mutilation
18 USC 793 — Gathering, transmitting or losing defence information
18 USC 1519 — Destruction, alteration or falsification of records in Federal investigations

Here’s my point in making this distinction. While the PRA changed the ownership status of presidential records, there has always been a recognition that presidents have an interest in those records. ... Note that disputes about presidential records largely revolve around identifying records that are “personal” in nature rather than being records of the performance of the president’s constitutional duties.

I think that what we’re going to find out is that most or all of the records that were seized in the MAL Raid could be legitimately regarded as subject to negotiation between President Trump and the National Archives. What DoJ and the FBI—or, more generally, the Deep State—are attempting to do is to transform this dispute into one that is governed not by the PRA but by federal criminal law. This, as many have observed, has never been done before.

On this point—which I regard as the true Big Picture—McCarthy writes, citing the warrant:

Where things get really, shall we say, elastic is subsection (c). It permits the seizure of “any government and/or Presidential Records created” throughout the four years of Trump’s presidency.

Plainly, this has nothing to do with classified information. It is mainly designed to use the criminal law — the search warrant, an intrusive tactic for retrieving evidence of crimes — to enforce the Presidential Records Act, which is not a criminal statute.

Can DOJ get away with this? Perhaps. Section 2071 is very broad, targeting anyone who “removes” or “destroys” “any” government record. If you are wondering how this did not apply to Hillary Clinton’s removal of tens of thousands of government-related emails and willful destruction of tens of thousands of others, you are not alone. In any event, Rule 41 of the Federal Rules of Criminal Procedure permits the seizure not only of evidence of a crime but also of “items illegally possessed.” It seems clear from the context [of Rule 41, which is specifically part of the rules of CRIMINAL Procedure] that this phrase is meant to apply to items derived from criminal activity. Literally, though, it is clearly broader than that.

Since Congress did not choose to attach criminal penalties to violations of the Presidential Records Act, what we see here amounts to the Justice Department fashioning a new crime for Donald Trump. This is not my idea of the even-handed enforcement of the law — no partisan discrimination — that Attorney General Merrick Garland insisted he pursues in his remarks on Thursday. But there will be plenty of time to discuss that.

So, for anyone who may have been confused by what I wrote, hopefully this will provide additional clarity regarding what’s going on. For honest lawyers this is all a pretty transparent miscarriage, carried out in bad faith. Nevertheless, as I wrote at the time, there will be much more written on this, because these are somewhat arcane areas of the law which only specialists spend much time studying. Obviously, Trump’s lawyers will be making arguments very similar or identical to those that McCarthy (and I, and Turley) have sketched out. The problem is that, as we all know, the likelihood in our “justice” system is that these issues will not be resolved quickly. Justice delayed is justice denied—which is kinda the point, for anyone who thinks justice for Trump is actually what the Deep State is pursuing. Smear and delay is the name of the game.