Experts Begin To Weigh In On MAL Raid Warrant
Regular readers will hopefully recall that, in the immediate aftermath of the Zhou Regime’s raid on President Trump’s Mar-a-Lago residence, I presented two general guidelines. The first was that, in the last analysis, the big picture way to understand this raid would be to focus on the legal framework. What that means is that, while the regime’s warrant talks about several laws regarding the handling of classified and/or national security documents (not necessarily the same thing under the Espionage Act), there is in fact a law that deals specifically with documents created by a presidential administration: The Presidential Records Act of 1978.
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Now, the regime wants you to think about “classified documents”, and the general proposition that “no one is above the law.” There’s another side to that general proposition, which is that not every law applies to every person. And that’s where the PRA comes into play, because the very basis for the PRA is the recognition that the POTUS is unique in our constitutional order. He is the commander in chief, the chief executive, and as such is also the original classifying authority. He can classify—within guidelines—but he can also declassify at will. That is his unique authority. No other person can do that. In other words, parroting the general proposition that no one is above the law is an attempt to deflect public attention from the specific issues that govern this case: since not every law applies to every person we must ask, what law or laws applies to this specific person—former president Donald Trump—for purposes of questions involving the handling of documents created by his administration.
The second general point that I made was that we would undoubtedly be hearing a lot more about specific issues from persons with expert knowledge, that it would be complicated, but by maintaining a focus on the big picture as described above we would be able to absorb and understand it all. Yesterday we briefly noted the perspectives of two legal experts, Greg Jarrett (on search and seizure issues, under the Fourth Amendment, especially the questionable constitutionality of such a “general” warrant as the one the FBI obtained) and Alan Dershowitz, who focused on issues of executive privilege.
All that and more is grist for the mill, illustrating that Trump’s case against this “extraordinary” raid (the magistrate’s characterization) is quite strong. In addition, Rivkin and Casey (David B. Rivkin Jr. and Lee A. Casey)—two of the experts I expected would weigh in—have done so in a WSJ OpEd dated 8/22/22. The importance of their OpEd is twofold. The first is simply that Rivkin and Casey really do have expertise in matters affecting presidents and former presidents:
Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.
For many years Rivkin and Casey have commented regularly at the WSJ on fairly high level constitutional issues, so it was to be expected that they would weigh in.
The second reason their OpEd is important is because it sheds light on the area of focus that I pointed toward, but with far more expertise and practical knowledge. Most importantly, they point out that the SCOTUS long ago provided guidance for reconciling general and specific statutes:
A former president’s rights under the Presidential Records Act trump the statutes the FBI cited to justify the Mar-a-Lago raid.
From the title we see that Rivkin and Casey’s critique goes right to the heart of the matter: The Zhou regime’s raid on Trump’s residence was lacking in any legal basis. This goes beyond claims of defects in the warrant. Rivkin and Casey are maintaining that the general statutes cited in the warrant simply do not apply to this situation—the PRA controls.
Here’s the nub of their analysis. Recall that until the PRA came into effect, in 1978, presidential records were simply regarded as the personal property of the president, which he was free to dispose of at will. That was changed by the PRA, which made those records public property. However, the PRA sought to balance the interests of “government, former presidents and history.” In performing this balancing act the PRA explicitly recognizes a former president’s right of access to these documents after leaving office:
Federal law gives Mr. Trump a right of access to [documents created by his administration]. His possession of them is entirely consistent with that right, and therefore lawful, regardless of the statutes the FBI cites in its warrant.
Again: No one is above the law, but not every law applies to every person.
Those statutes [cited in the warrant] are general in their text and application. But Mr. Trump’s documents are covered by a specific statute, the Presidential Records Act of 1978. It has long been the Supreme Court position, as stated in Morton v. Mancari (1974), that “where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” The former president’s rights under the PRA trump any application of the laws the FBI warrant cites.
The PRA explicitly guarantees a former president continuing access to his papers. Those papers must ultimately be made public, but in the meantime—unlike with all other government documents, which are available 24/7 to currently serving executive-branch officials—the PRA establishes restrictions on access to a former president’s records, including a five-year restriction on access applicable to everyone (including the sitting president, absent a showing of need), which can be extended until the records have been properly reviewed and processed. Before leaving office, a president can restrict access to certain materials for up to 12 years.
Thus, Trump’s possession of his presidential records—classified or not is basically irrelevant—is vindicated by the specific statute that was designed to control such situations.
Rivkin and Casey go on to discuss practical questions. So, while Trump’s possession is vindicated, a question could arise whether his custody is being responsibly exercised. But that appears to have been addressed in the earlier FBI visit to Mar-a-Lago. From every account we’ve seen, the FBI simply recommended the installation of an additional lock for the storage room at Mar-a-Lago. That additional lock was installed. And so Rivkin and Casey conclude:
If [storage security] was insufficient, and Mr. Trump refused to cooperate, the bureau could and should have sought a less intrusive judicial remedy than a search warrant—a restraining order allowing the materials to be moved to a location with the proper storage facilities, but also ensuring Mr. Trump continuing access. Surely that’s what the government would have done if any other former president were involved.
Once again, one is struck by the precipitate and “extraordinary” step that was taken: The MAL Raid predicated on extremely shakey legal grounds. One is left with the impression that something is going on here that goes far beyond issues of custody. That, no doubt, explains the citation of general statutes rather than the PRA, which is the clearly controlling legal authority. My guess is that the courts will end up making pretty quick work of this. My sense is that the magistrate is already backing away from the warrant that he signed, probably under advice from judges higher up the ladder. This MAL Raid has trampled far too many basic principles of our constitutional order for the Judiciary to let it pass.