Aug 16, 2022
If you're looking for a figure from history to compare Donald Trump to in the wake of the FBI's search of his Mar-a-Lago resort in Palm Beach, Florida, I have a suggestion that may surprise you: Al Capone.
As I once wrote in connection with Trump's first impeachment, the similarities between Trump and the renowned mobster are many; both, for example, allegedly ran wide-ranging criminal enterprises, and both were adept at side-stepping legal accountability.
The Feds tried but failed to bring Capone to justice for masterminding the St. Valentine's Day Massacre of 1929, in which seven of his gangland Chicago rivals were killed, and for the violent extortion and bootlegging empire he built during Prohibition. In the end, Capone was sent to prison in 1931 for the white-collar offense of income tax evasion. After serving his time in custody, Capone was paroled in 1939, suffering from syphilis and early-onset dementia. He died at his villa in Florida eight years later, with what his doctor described as the mentality of a twelve-year-old child.
Like Capone, Trump might still evade liability for the most egregious crimes he may have committed-seditious conspiracy and obstruction of Congress related to his attempt to overturn the results of the 2020 election. But the FBI and the Justice Department appear to have the receipts--literally--to prove him guilty of willfully mishandling, concealing, and perhaps destroying top-secret federal documents.
The search warrant executed at Mar-a-Lago on August 8 has been unsealed, along with the "return" to the warrant, listing the items taken from the property.
The warrant indicates that Federal Magistrate Judge Bruce Reinhart, who sits in West Palm Beach, found there was probable cause for the FBI to search Mar-a-Lago and seize all "physical documents and records, constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of" a section of the Espionage Act and two other federal criminal statutes.
The Espionage Act outlaws gathering, transmitting, or losing national defense information. The other statutes prohibit the concealment or removal of federal records, and the destruction, mutilation or alteration of records to obstruct a federal investigation. The statutes prescribe punishments ranging from three to twenty years in prison.
The return to the warrant indicates the FBI seized twenty-eight items of evidence, including twenty-one boxes containing unspecified materials, four sets of "top secret" documents and one set of "classified TS/SCI [top-secret segmented compartmented information] documents," a reference to information concerning intelligence sources and methods that requires special handling and could involve nuclear science and design files. In addition, the FBI hauled away various photo binders, information about the president of France, and Trump's signed grant of clemency to Roger Stone.
Trump and his sycophants have floated various defenses against a possible future prosecution. In a post on his Truth Social media platform two days after the search, the former President suggested federal agents may have secretly "planted" evidence against him. The claim has been echoed by at least one of Trump's attorneys and by rightwing media personalities such as Jesse Waters of Fox News.
No evidence, however, has been made public to support the claim, and subsequent reporting has disclosed that Trump and family members, who were in Trump Tower in New York City at the time of the search, watched the entire operation via a closed-circuit security feed broadcast from Mar-a-Lago.
Trump and his minions have also protested that any documents the FBI found had been declassified before they were removed to Mar-a-Lago while Trump was still in office. Thus, they contend, no crimes were committed.
Although Presidents do have broad authority to declassify information, this defense won't save Trump, either. Detailed procedures must be followed to implement a declassification directive, the directive must be in writing, and even a President lacks authority to unilaterally declassify nuclear secrets.
Equally problematic for Trump is that the three statutes he is alleged to have violated do not explicitly require that the records in question be classified. All that needs to be shown is that the records belong to the government, not Trump, and in the case of the Espionage Act, that the records pertain to national defense.
Apparently realizing that he's been trapped by a predicament of his own making, Trump has argued that former-President Obama left the White House with "33 million pages of documents, much of them classified," including items related to U.S. nuclear programs, and that Obama faced no adverse consequences. However, the National Archives and Records Administration (NARA) quickly issued a sharp rebuke of the Obama comparison. Obama, according to the agency, turned everything over.
If there was ever a case that merited the early release of a redacted version of an affidavit, the first-ever search and seizure involving a former President of the United States is it.
As the Justice Department's probe proceeds, Trump also can be expected to reprise his condemnation of Hillary Clinton, who narrowly avoided prosecution for her use of a private email server that contained classified documents while she was Secretary of State. This defense, too, will prove ineffective.
Clinton was investigated by the FBI. But, as former Director James Comey famously explained in a July 2016 press release, while Clinton was "extremely careless" in her email use, it could not be shown that she acted with criminal intent to willfully mishandle classified information or obstruct justice.
The same cannot be said of Trump. The National Archives first alerted Trump in January 2021 of his obligation to return all official records from his time in office. Trump turned over fifteen boxes of records a year later, but withheld other records. NARA referred the matter to the Justice Department last February, and the Justice Department has been trying ever since to obtain compliance.
Far from cooperating with the department, Trump hedged, delayed, and prevaricated. According to The New York Times, a Trump attorney signed a written statement in June, asserting that all classified material held at Mar-a-Lago had been returned. That assertion was untrue.
In a sign of growing desperation, some of the former President's staunchest allies, including Republican Senator Lindsey Graham of South Carolina, are demanding to see the affidavit filed in support of the search warrant, upon which Judge Reinhart based his finding of probable cause.
Affidavits are the heart of any application for a search warrant. In compliance with the Fourth Amendment, they are used to detail the facts and circumstances requiring the issuance of a warrant, and to specify the places to be searched and the items to be seized. They are typically sworn to by federal agents and are rarely released while an investigation is in progress in order to protect the identity of federal agents and any informants who have cooperated with the government.
Still, if there was ever a case that merited the early release of a redacted version of an affidavit, the first-ever search and seizure involving a former President of the United States is such a case. And make no mistake: Releasing the affidavit is the last thing Trump and his supporters really should want. They would be well advised to devote all their energy and limited legal talent to suppressing the affidavit along with the evidence seized. If and when it sees the light of day, the affidavit will help to bury Trump.
On August 14, Trump offered yet another defense, demanding that the FBI return the seized material as some of the boxes taken allegedly contained confidential attorney-client communications, and items protected by executive privilege. The former President apparently doesn't realize that by raising this objection, he has completely undercut his earlier claim that the documents were planted.
We may want to see Trump prosecuted for his role in the January 6 insurrection, but holding him accountable for serious records and reporting violations may be the easiest and quickest road to a felony conviction.
The approach worked for Al Capone nearly a century ago, and may well work for Trump today.
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