THREAD. Will Trump be charged with a crime, following the search at Mar-a-Lago? Ehhhh...if you look at it through a national security lens, maybe not. A quick explainer to manage expectations:
2. I learned something new from @petestrzok today: That typically, the government does not use subpoenas to recover classified info from those not authorized to receive it. I'll let him explain why, but it has implications for potential criminal charges moving forward
3. As I've mentioned repeatedly today, unauthorized possession or storage of classified documents are, by definition, a threat to national security. And the government must neutralize that threat. If a subpoena is not an option, then the government has a dilemma
4. Either 1) Trump voluntarily returns the docs, or 2) they get a search warrant to retrieve them. It seems like they tried, for over a year, to do #1. What if that fails? One imagines that then they have to keep threatening his lawyers that they will have to come and take them
5. So basically in this scenario this becomes a game of chicken. Gov sends folks from DOJ. Trump still has the docs (as they say, possession is 9/10s of the law!). At some point, DOJ decides to bite the bullet bc it is too risky to allow sensitive documents to remain at MAL
6. One imagines a SW application which lists, e.g., 18 U.S.C. 793(e) -- willful failure to return national defense information. Discussed with @renato_mariotti, who pointed out that then the PC consists of all the exchanges between DOJ and Trump's lawyers playing chicken
7. Search warrant gets signed off, they go in, comb the place, remove all of the documents which may pose a threat to national security. Now what? The threat has been neutralized. In other words, the GOAL -- eliminate the threat -- has been achieved, through the means -- a SW
8. So -- mischief managed. Now, does DOJ *also* need to PUNISH Trump? That's a whole different ballgame. As many have pointed out, PC for a search warrant is lower than beyond a reasonable doubt to convict -- not to mention the hurdle of indicting and prosecuting a former POTUS
9. Counterpoint: It looks really bad to go into Trump's home (even if he was warned repeatedly that this is what would happen), execute a search, and then not charge him. I think public would need to know more about the nature of the documents taken to be satisfied
10.This isn't to say there wouldn't be a *basis* to prosecute (could be same crime listed in SW application or something else). But the *need* to do that is less pressing if impetus for the SW in the first place is to eliminate threat to nat sec and there was no other option /END
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THREAD. Because the FBI search concerned classified docs, this is a national security investigation. That can help explain why DOJ was willing to move on this, and to do so regardless of what may be going on with the 1/6 investigation
2. First, assuming that this involves mishandling or unauthorized removal of classified information, their presence at Mar-a-Lago is ipso-facto evidence — in other words, the substance of the documents are not what the FBI is interested in; it’s whether they are there, period
3. Also, on this point, I have to wonder whether the FBI has a source in MAL, to confirm the presence and location of docs. Staff? Secret Service? I can’t imagine them taking a chance to search a former president’s home and coming up empty handed (😬)
Given how early it seems in the DOJ’s investigation of the Eastman/fake elector scheme as it pertains to Trump, my guess is that this is about the WH removal of classified documents, which I suspect is a separate investigation and one that likely has been going on for a while
Remember that a search warrant has to demonstrate probable cause that evidence of a crime will be found in the places and things searched. If the crime is mishandling classified docs, the evidence are THE DOCS THEMSELVES (and them being at Mar-a-Lago) 2/
If it is about the conspiracy to obstruct, etc. I would think they'd be taking his devices (or searching his toilet) to get the substance of communications. That seems like a much more intrusive step and one that would likely come a bit later, but that's just my initial take /END
@BradMossEsq@MuellerSheWrote@maddow I don’t think this is exactly true. Applied to the Russia investigation: The FBI counterintelligence division opened investigations into Trump associates who had contacts with Russian intelligence (“contact cases” — which is SOP). If the AG wanted to quash these 1/
@BradMossEsq@MuellerSheWrote@maddow S/he would have to take affirmative steps to *close* an investigation that was already opened otherwise had proper predication, and justify and sign his/her name to it. This creates *more* accountability (and a paper trail for potential obstruction) 2/
@BradMossEsq@MuellerSheWrote@maddow By making the required approval rest all the way with the AG, the opening itself could be quashed. This gives the AG *more* power (in cases where s/he is more likely to have a self interest) and *less* accountability. That was the whole point, wrt Barr 3/
I learned from @jenmercieca the 5 criteria the Greeks used to determine whether someone was a Truth Teller (parrhessiastes). Evaluate Hutchinson against them:
REFRESHER 🧵: Jeffrey Clark, who appears to have just had a search warrant executed on him, was trying to get DOJ to rubber stamp Eastman’s fake elector coup plot by falsely giving it DOJ cover. To wit:
2. Clark drafted a letter that would be sent to the state legislatures in Trump’s “disputed” states (see link), falsely claiming that DOJ had found voting irregularities there and instructing them to convene special legislative sessions documentcloud.org/documents/2108…
3. The letter further instructed the state legislatures that it was “in the normal interest” and constitutionally permissible to evaluate these “voting irregularities” and come up with a secondary slate of electors (for Trump)…which dovetails with Eastman’s plot wrt VP Pence