Five big unanswered legal questions in the Trump raid case

Imminent release of redacted search warrant affidavit may shed some light on FBI motives, but won't answer all the questions.

Published: August 25, 2022 9:11pm

Updated: August 25, 2022 11:13pm

The court ruling clearing the way for Americans to get a glimpse into the reasoning behind the FBI raid on Donald Trump's estate may shed some light on the state of the criminal investigation but likely won't answer many of the substantial legal and political questions bedeviling America.

And that means a drama that exploded unexpectedly in the dead of summer's dog days is likely to drag on for months in the courts of both law and public opinion.

The probe, top Justice Department official Jay Bratt told a court, is in its "early stages." The ultimately discredited Russia collusion probe stretched on for nearly three years, even though there wasn't any real evidence of wrongdoing. And that means this case — which involves questions of whether presidential records were wrongly kept from the National Archives and national security secrets wrongly compromised in violation of the Espionage Act — is likely months from any serious resolution.

In the meantime, here are some of the most important unanswered questions in a case that has riveted America:

1. Did the 45th president declassify the documents found in his home? 

Trump's office issued a statement saying the records found in Mar-a-Lago were originally taken by the president from the Oval Office to his White House residence under a "standing" declassification order. If the former president can show that — and presidents have wide latitude to declassify at will without going through the normal process — it could challenge any criminal prosecution under the Espionage Act. "The president can be left with whatever documents on his request that he wants," says former federal prosecutor Kash Patel, an adviser to Trump who believes all the documents at Mar-a-Lago were already declassified. "He's the president of the United States. He's a unilateral, final arbiter of classification and declassification authorities."

Other legal observers think some evidence of a process or proof of the declassification order will be needed to satisfy prosecutors, but all agree every president has wide latitude to declassify what they want, when they want while they are in office. Some legal observers also noted a careful choice of language in the National Archives May 8, 2022 letter sent to Trump's legal team. Rather than call the documents found at Mar-a-Lago "classified" they described the recovered papers as "documents with classification markings," language that leaves open the possibility that declassification may be disputed in the future.

2. Did President Joe Biden have the constitutional authority to waive executive privilege over Trump documents sent to Congress or the Justice Department?

Over the last two decades, executive orders governing executive privilege waivers have fluctuated on this issue. Under George W. Bush, the final decision on executive privilege covering a former president's papers was tipped toward the ex-executive and not the incumbent president. During the Obama-Biden years, the final say was tilted back toward an incumbent president as we covered in this recent story. That rollercoaster history means any legal challenge will likely look at the Constitution. Biden used the Obama-era guidance to authorize the National Archives to pierce Trump's privilege and send evidence to the FBI this spring.

Several constitutional scholars believe the U.S. Supreme Court will side with the Bush rather than the Obama model.

"The idea that a sitting president can somehow waive the executive privilege of a previous president really wrecks the executive privilege, which is implicit in Article II of the Constitution," says Alan Dershowitz, the famed Harvard law professor emeritus. "You can't have a privilege, which then your political opponent can waive. What President would ever seek advice and confide in people around him, Cabinet members, White House counsel, White House chief of staff, if you knew that when you're defeated for office, and you're going to be running again, your opponent can just by saying I waive the privilege, get into every single conversation you ever had. I can't believe that any constitutional scholar would agree with that."

3. Were some of the records seized by the FBI previously deemed personal records by Trump? 

Reports indicate the National Archives were looking for records like letters between Trump and North Korean leader Kim Jong-un to be returned as presidential records. But a 2012 federal court ruling involving a dispute with Bill Clinton declared that presidents have the "sole discretion" to decide which of their presidential records are personal and that such decisions can't even be challenged by a federal court. The only remedy is a civil procedure in the Presidential Records Act in which the National Archives and an Attorney General seek to force the recovery of disputed documents.

Judicial Watch President Tom Fitton, who was a party to the 2012 case, believes the ruling a decade ago is so sweeping as to negate most of the FBI's investigation. "The government, the lawyer for the Archives, said, 'You know what? If documents are in the former President's hands, where they're presumptively personal, we just, you know, we presume they're personal,'" Fitton said.

4. Was the approved search warrant overly broad, and did it result in illegal over-collection of evidence?

The rules for FBI agents and federal prosecutors require that a search warrant be cast as narrowly as possible to protect Americans' 4th Amendment right against unlawful search and seizure. But the Mar-a-Lago search warrant authorized the seizing of any presidential records between Jan. 20, 2017 and Jan. 20, 2021, a massively broad category. And even with that breadth, the Justice Department admits it mistakenly seized Trump's passports and other documents that were marked privileged.

Former FBI Assistant Director Kevin Brock said he believes the search warrant was unconstitutionally broad and may be struck down on appeal. Under the warrant, "any government or presidential record created during his term, you can seize it," Brock said. "That, to me, seems overly broad. [They] should have been a little bit more specific. It allowed the searching agents basically a hole that you could drive a truck through. And I think that's going to become, as I've mentioned before, I think that provides a runway for Trump's attorneys to argue that the search was overly broad."

5. Is the FBI investigation properly predicated to laws that have a criminal enforcement component? 

Many observers, Brock included, have raised concerns that the dispute over presidential records is governed by laws that don't have much of a criminal enforcement mechanism to them, making the FBI raid look, as Brock put it, like "the revenge of the National Archives."

"If this turns out to be what it appears to be — and that is basically a document dispute involving some fairly low-level federal statutes — then the perception that this was pursued as a political campaign versus one seeking justice becomes more real in the minds of people," said the former FBI executive.

Constitutional lawyer David Rivkin warns that such a distinction could render the entire investigation unlawful. "The Trump warrant had no legal basis," Rivkin wrote in a Wall Street Journal op-ed with a colleague this week. "... Nothing in the [Presidential Records Act] suggests that the former president's physical custody of his records can be considered unlawful under the statutes on which the Mar-a-Lago warrant is based." 

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