It’s only a week, but already there seems to be a ton of questions about the FBI raid against President Donald Trump.
Add in another one.
There was already the question of the warrant being overly broad, applying to every document made during Trump’s presidency, which is ridiculous. But they may have gone beyond what they were entitled to take as well.
According to a Fox report, the FBI seized documents covered by attorney-client privilege as well as documents potentially protected by executive privilege during the raid.
Sources familiar with the investigation told Fox News Saturday that the former president’s team was informed that boxes labeled A-14, A-26, A-43, A-13, A-33, and a set of documents—all seen on the final page of the FBI’s property receipt —contained information covered by attorney-client privilege. [….]
Sources told Fox News that some records could be covered by executive privilege, which gives the president of the United States and other officials within the executive branch the authority to withhold certain sensitive forms of advice and consultation between the president and senior advisers. [….]
Sources told Fox News that, due to attorney-client privilege, Trump’s team asked the Justice Department for their position on whether they would support a third party, independent special master to review those records, but sources told Fox News that the DOJ notified Trump’s team that they would oppose that request.
That of course raises more questions: Why would they oppose the request for an independent special master if the action they had taken was proper? And why would they oppose the request if they cared about demonstrating transparency and objectivity to the public? This will make people even more suspicious now about the action.
We already talked about the raid being a fishing expedition, but it’s very concerning if they took documents subject to attorney-client privilege. That may give them a window into the potential defense actions that Trump and his lawyers are taking in cases — something which should never happen. Further, former presidents may be able to assert executive privilege in some cases, setting up potentially still another problem with what they may have taken.
While the property receipt shows some classified or top-secret documents, Trump is saying they would have been declassified. As we noted, however, the underlying criminal statutes don’t require that the documents in question be classified for them to apply.
The government conducted the search in response to what it believes to be a violation of federal laws: 18 USC 793 — Gathering, transmitting or losing defense information; 18 USC 2071 — Concealment, removal or mutilation; and 18 USC 1519 — Destruction, alteration or falsification of records in Federal investigations.
So even if they were declassified, that may be irrelevant. These statutes allow the FBI to cast the broadest net they can to hook Trump up on something.
But, as we also noted, if the concern was “national security,” the FBI waited for three days after getting the warrant before conducting the raid. Not to mention they were talking with Trump about the documents for 18 months. That doesn’t make it seem like things were very urgent. The DOJ has yet to explain themselves as to why they couldn’t just have asked for the items since Trump had already turned over many boxes to them in June.
The FBI took about 20 boxes from the residence during the raid, according to Fox.
The source questioned whether the federal magistrate judge who signed off on the warrant for the FBI’s raid of Mar-a-Lago Monday was aware of Trump’s “past compliance with the subpoena,” adding that, if the FBI was looking for additional documents, another subpoena could have been issued, as Trump and his team were “cooperative” and turned over documents and records responsive to the subpoena issued in the spring.
That’s also a good point — whether the FBI told the judge all the facts. We’ve seen in the past during the Russia probe how the FISA Court was misled by a false document filed by the FBI lawyer Kevin Clinesmith.
So add another question to the many already raised about the FBI’s actions in this case.