Trump’s Deflections and Defenses to the FBI Search and Seizure: A Primer on Why Each Fails

Images courtesy of NBC News

After news broke a week ago—from the former president himself no less—that the FBI had conducted a search of his property at Mar-a-Lago in Florida, Trump and very soon his allies began a drumbeat of deflections and defenses. These were so numerous and often contradictory that they called to mind Steve Bannon’s infamous advice about the media, saying the way to best deal with them is to “flood the zone with shit.”

That flooding began with re-characterizing a courteous and professional search as a “raid” upon his “home” and continued with at least the following:

• It’s a political witch hunt by corrupt authorities

• There was no legal basis for the warrant

• The FBI planted evidence

• It was only a procedural dispute over trivial items

• WhataboutHillary and WhataboutObama

• As president Trump declassified everything

• They took privileged documents

Any one of these could be its own lengthy write-up, but given that it’s also important to have clear and simple responses, we need to cut through what is essentially a squirt of orange ink into these legal waters.

“It’s a political witch hunt by corrupt authorities.”

The claim: Trump and his allies have claimed that the entire decision to execute the search of Mar-a-Lago was politically motivated, backed up by a judge in the pocket of the Democrats and ordered by the White House. This has led to shameful antisemitic attacks on the judge who signed off on the warrant (as well as threats to his synagogue), threats to agents whose names appear on the warrant, and a crazed gunman attacking the Cincinatti field office of the FBI.

The facts: President Biden and the White House learned about the FBI search at the same time everyone else did—when Trump went public with the news. The judge has donated to the campaigns of both Democrats and Republicans, including the presidential campaign of former Florida governor Jeb Bush. The FBI Director, Christopher Wray, who certainly signed off on such a consequential FBI action, was appointed by Trump himself, is a lifelong Republican, and is a member of the Federalist Society. This was no conspiracy of partisans.

“There was no legal basis for the warrant.”

The claim: Trump and his supporters claimed the Justice Department, driven by its desire to punish a political opponent, conducted a raid upon the former president’s home as a fishing expedition without any probable cause to do so. While the warrant remained under seal, Trump was able to make this claim broadly because he knew there was no way for the Justice Department to contradict it without speaking publicly about an open investigation. Trump made these claims even while possessing a copy of the warrant and inventory list, which he initially declined to release. 

The facts: Attorney General Merrick Garland countered this move quickly, holding an historic news conference in which he revealed that the Department had filed a motion to unseal the warrant and the inventory list provided to Trump. Backed into a corner and hoping to get ahead of the news, Trump provided copies of the warrant and the inventory list to Breitbart News before the judge agreed to unseal them. The warrant listed at least three criminal statutes for which the Department had provided evidence to the federal magistrate, leading the magistrate to agree that there was probable cause to believe they had been violated and that evidence of the crimes could be found at Mar-a-Lago. The inventory list showed authorities had retrieved 11 boxes of materials and that top secret / sensitive compartmented information and other classified and confidential documents were contained within those boxes.

“The FBI planted evidence.”

The claim: In his initial post announcing the search, Trump baselessly implied that the FBI had planted evidence at the scene. “Everyone was asked to leave the premises, they wanted to be alone,” he wrote, “without any witnesses to see what they were doing, taking or, hopefully not, ‘planting.’” This claim of planted evidence was repeated by his allies on Fox News and other right-wing media outlets. 

The facts: Trump failed to disclose that he, his family, and his lawyers watched the entire raid through the surveillance cameras at Mar-a-Lago. As his lawyer Christina Bobb, who was asked to wait outside while the search was conducted, said during an interview with Real America’s Voice, “The folks in New York — President Trump and his family — probably had a better view than I did. Because they had the CCTV, they were able to watch.” The Trump family was “actually able to see the whole thing,” she said, adding, “They actually have a better idea of what took place inside.” Eric Trump also confirmed in an interview with right-wing newspaper The Daily Mail that he observed the search via CCTV.

“It was only a procedural dispute over trivial items.”

The claim: The former president and his allies sought to downplay both what had been removed from the White House and stored at Mar-a-Lago and to portray the dispute as a “procedural” one with the National Archives, in which after more than a year of back and forths Trump finally turned over 15 boxes as part of “an ordinary and routine process.”  Trump ally Charlie Kirk of Turning Point America labeled the whole affair, “a paperwork dispute.” His aides also claimed things were so frantic in those final days of packing that it was simply an oversight. After all, “if he’s the one just throwing things in boxes, who knows what could happen?” said one aide.

The facts: When Trump finally returned the initial 15 boxes of documents to the National Archives in February of this year, the agency was alarmed to discover that there were classified documents among those returned. It made a criminal referral to the Justice Department, which convened a federal grand jury to investigate the matter, which then issued a subpoena for remaining documents. A visit by Justice Department officials in June, including the top Counterintelligence officer in the country, produced more sensitive documents turned over by Trump’s lawyers and a written declaration from one of them confirming that all documents marked classified had been returned. A subpoena for six months of video surveillance footage, however, led investigators to doubt the veracity of that representation. After interviewing more people with knowledge about the handling of documents, authorities then sought a warrant for the search. Reported among the items sought were nuclear weapons documents and signals intelligence information, two of the most important and sensitive types of information conceivable. The search resulted in 11 more boxes of unrecovered documents recovered that included top secret and classified information.

“WhataboutHillary and WhataboutObama”

The claim: Trump and his cohorts could not resist taking us back many years to the Hillary Clinton email server investigation and even to President Barack Obama’s documents. “Hillary Clinton was allowed to delete and acid wash 33,000 emails AFTER they were subpoenaed by Congress,” Trump declared on his social media platform, Truth Social. “Absolutely nothing has happened to hold her accountable.” As for Obama, Trump stated, “President Barack Hussein Obama kept 33 million pages of documents, much of them classified. How many of them pertained to nuclear? Word is, lots!”

The facts: Without going too far down the rabbit hole, broadly speaking former Secretary of State Clinton was investigated for improper use of a private email server, and for sending emails, some of which were had been marked “classified.” She did not delete or “acid wash” emails; Clinton’s lawyers turned over 30,000 of them and deleted any that were personal in nature. Among them were 113 that had been classified, but a later report found that many of these markings were unclear. The investigation was extensive and highly public, and Clinton fully cooperated with it. While it concluded without criminal charges, she paid a steep political price for it in the 2016 election. With respect to Trump’s incorrect and veiled racist attack on Obama, the National Archives set that straight quickly, stating that that it obtained “exclusive legal and physical custody” of Obama’s records when he left office and that about 30 million pages of unclassified records were transferred to a NARA facility in the Chicago area. They continue to be maintained “exclusively by NARA.”

“As president, Trump declassified everything.”

The claim: Trump sent a statement to Fox News claiming, “President Trump, in order to prepare for work the next day, often took documents, including classified documents, to the residence. He had a standing order that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.” Accordingly, Trump’s allies claim that none of the documents retrieved from Mar-a-Lago were there in violation of any federal laws.

The facts: The argument is legally irrelevant in the first instance because none of the statutes cited in the warrant require documents to be “classified” in order for crimes to have been committed. As Charlie Savage of The New York Times noted, two of those laws make the taking or concealment of government records a crime regardless of whether they had anything to do with national security. And the Espionage Act, which is included among the statutes at issue, makes no reference to whether a document has been deemed classified, and it instead makes it a crime to retain, without authorization, documents related to the national defense that could be used to harm the United States or aid a foreign adversary. This move to include only crimes where declassification was not a defense was probably an intentional move by the Justice Department, which likely predicted this response from the former president. 

Moreover, the idea that the president could give an oral declassification all documents that he took with him to the residence makes zero sense within the strict rules around classified designations and in any event is forbidden by statute in the case of nuclear weapons information covered by the Atomic Energy Act. Further, there is no contemporaneous record of this “oral” declassification order ever having happened, and Trump’s own advisors dispute that it did, suggesting that it is an after-the-fact attempt to justify a breach of the laws. “I think that claim is almost certainly a lie,” said John Bolton on Trump issuing a standing declassification order. “Nobody briefed me or informed me that this policy or order was in effect. I was never aware of anything even remotely approximating that policy.”

“They took privileged documents.”

The claim: The latest claim by Trump, again posted on Truth Social, is that among the documents seized by authorities were those protected by the attorney client or executive privileges. Trump has demanded their return.

The facts: If there are in fact documents that are potentially covered by attorney-client privilege, there are walled off “filter teams” at the DoJ that sort through such documents to prevent their transmittal. This is a common practice given that authorities often seize large batches of materials, some of which may be privileged. In any event, among the documents sought were evidence of obstruction of the investigation under 18 U.S.C. 1519, including presumably any instructions by Trump not to cooperate or any knowledge by his lawyers that documents responsive to the grand jury subpoena might still exist at Mar-a-Lago. Such documents could be challenged as exceptions to the privilege under the crime-fraud exception, just as they were successfully challenged in the John Eastman matter after a judge found that it was likely Eastman and Trump had committed federal crimes.