About that Trump raid

LIKE any civilized person who is not a treasonous, violent bigot and misogynist, I rejoiced at the surprising news earlier this week that agents from the Federal Bureau of Investigation (FBI) had raided former president Donald Trump’s Florida estate. But after hearing the news, I had to remind myself to keep my enthusiasm in check, and initially resolved not to make this a column topic here on the other side of the world.

For one thing, any investigative action by the FBI, in this case the execution of a search warrant, should be handled with great care by the media, beginning with not speculating on why it was carried out unless and until someone in an official capacity provides that information. The initial source of the story about the “raid” — it really wasn’t that, but I like the word, given who was the subject of it — was the Tangerine Tyrant himself, in a spittle-flecked rant he released to the public shortly after the FBI visited his home; he was not there at the time, but was in New Jersey.

Beyond that, this piece of human garbage, thief, sexual deviant, murderer and traitor has eluded almost all consequences for so long that having any hope that this time will be the one that finally puts him away seems irrational. There have been too many “this times.” There, however, is such a volume of news and speculative commentary in both the conventional and social media, that it seems it may be a good idea to clarify what is happening for the audience who is not familiar with American civics and has no particular reason to be.

Late Thursday, I managed to have brief chat conversations with two acquaintances, one an attorney who was formerly with the Justice Department and is now retired from private corporate practice, and the other a current FBI agent. What they told me in confidence has since been publicly corroborated by statements from the FBI and the Department of Justice (DOJ), so it’s safe to divulge at this point.

The warrant was the result of a criminal investigation by the Justice Department into the former president’s unlawful possession of official government documents — in a delicious coincidence, in violation of a law passed in 2018 and signed by Trump himself, which carries a possible penalty of up to three years in prison and perpetual disqualification from public office. It was known that some of the documents concerned national security, which made locating them urgent, but it is not a prerequisite for a violation of the law that the documents involved be classified ones.

The process involves the creation of three documents by the FBI and the US Attorney of the relevant district, in this case in southern Florida. The first is an affidavit that details what the FBI is searching for, why it is evidence of a crime, where it is believed to be located and how the FBI determined that information, and why a search warrant is necessary, as opposed to other methods such as issuing a subpoena for the material in question. That affidavit is presented to a US Magistrate, who then, if he agrees that it is correct, issues a warrant. That warrant will specify the location to be searched, a general description of the material in question, and a time limit for the warrant to be carried out, usually a few days. The third document is called a return, and it is essentially a receipt given to the person subjected to the search that itemizes — again the descriptions here are less detailed than what it is in the affidavit — what has been removed.

The affidavit is sealed, and not available to the public unless a judge orders it; on Friday, US Attorney General Merrick Garland, who authorized the US Attorney in Florida to pursue the warrant, petitioned the court to unseal the affidavit in light of the frenzy the incident has caused. The warrant and return, on the other hand, are public information; they can be released to the public by the US Attorney, the person under investigation, or both. No one is required to release the information in these two documents, but the government cannot withhold it if someone requests it. As a general rule, from either a prosecutor’s or an accused’s point of view, the less information that is publicly disclosed, the better, because that disclosure could compromise evidence needed for a subsequent trial.

The FBI and the Justice Department are said to have attempted to carry out the raid as discreetly as possible, which my sources said is completely normal for any investigation, and was probably even more important given the political sensitivity of this one. The important point that was stressed, however, is that no matter who the subject of a search warrant is, both the FBI and the DOJ take all possible measures to avoid staging a “fishing expedition,” because if their search turns up empty, there is a risk that the accused may be able to use that perceived “harassment” in his favor in a court case, depending on what happened during the raid. The FBI, acting on behalf of the US Attorney, will know exactly what they are looking for and exactly where it is; if this is not clear ahead of time, the magistrate or judge will not issue the warrant in the first place.

One final point: although a critical feature of a search warrant is its specificity with respect to what is being sought and for what alleged crime it serves as evidence, if in the course of carrying out the search evidence of a different crime is discovered, that is not off-limits. Thus, in the case of Cheeto Mussolini, he is already on the hook for illegal possession of government documents; if the search has discovered that he did anything else illegal with those — such as disclosing classified information to unauthorized parties or foreign agents — that will result in an additional investigation and charges.