The FBI’s stunning search of ex-President Donald Trump’s home triggered a legal and political earthquake whose aftershocks are only widening a week on, with key questions that will shape the nation’s future still clouded in mystery.
Trump responded to the search by reviving the chaos and acrimony that defined his administration. Ahead of a likely 2024 run, he showed undimmed zeal in challenging US checks and balances and inciting his political movement against them.
Two major developments in the furor stood out over the weekend. New reports showed that a Trump lawyer told the Justice Department in June that there was no more classified information at Mar-a-Lago. But from what emerged on Friday, FBI agents took classified material, including some bearing the high-level designation “Top Secret/SCI,” from Trump’s home last Monday. The contradiction could suggest a broadening footprint of possible legal exposure inside Trump’s inner circle if there was an attempt to mislead the Justice Department.
Then on Sunday, several senior Republicans pioneered a new defense of the ex-President, questioning whether the material at Mar-a-Lago was actually highly sensitive, citing a President’s powers to declassify top secret information.
“One (question) is whether or not the search itself was justified. We have this list from the FBI, but we don’t have conclusive (proof) as to whether or not this actually is classified material and whether or not it rises to the level of the highest classified material,” Ohio Rep. Mike Turner, the top Republican on the House Intelligence Committee, said on CNN’s “State of the Union.”
Turner’s gambit continued to raise the question of whether the Justice Department overreached in the extraordinary move of obtaining a search warrant to enter a former President’s property. But it was also just the latest GOP attempt to defend Trump, still a massively powerful force in the party, that ignored key issues that include why a former President needed to hold on to highly sensitive documents.
The new GOP approach followed increasingly desperate and baseless claims from Trump, conservative lawmakers and media pundits that the FBI was nothing but a weaponized political enforcement arm for President Joe Biden, that the bureau may have planted documents during the search to discredit Trump or all they had to do was ask to get material back. Each of those attacks appeared aimed at distracting Americans from yet more evidence of Trump’s aberrant behavior.
The Republican counter-attack also fails to take into account the fact a federal judge had to agree there was a probable cause a crime had been committed before he authorized the warrant to search Trump’s home.
Previously sealed court documents released Friday indicated prosecutors were probing possible violations of the Espionage Act, obstruction of justice and criminal handling of government records.
In his appearance on CNN, Turner sought to straddle his responsibility to show gravitas as one of the members of Congress charged with critical responsibilities in overseeing the intelligence community with political imperatives in the GOP to defend Trump.
He did not repeat the wild claims about politicization of the FBI that were fired from the hip by Republicans who had little knowledge of the material at Trump’s residence. But Turner also sought to increase pressure on Attorney General Merrick Garland, who last week vowed the Justice Department wouldn’t be deterred in ensuring the rule of law applied to everyone, even ex-presidents.
“Attorney General Garland needs to provide these materials … Let us see them,” Turner told CNN’s Brianna Keilar of the evidence the Department of Justice used to justify a search on Trump’s home. “And then we can tell you what our answer is and what our discernment is of whether or not this is a true national security threat or whether or not this is an abuse of discretion by Attorney General Garland.”
Turner questioned whether documents taken from Mar-a-Lago were really still classified, despite their descriptions on a receipt left with Trump by the FBI that suggested that they were.
“The receipt shows is that this material was marked as such. It doesn’t mean that it currently is,” Turner said.
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Republican Sen. Mike Rounds of South Dakota also suggested the Justice Department could clear up some questions about the search by releasing an affidavit used to justify the search, which remains under seal.
“I think it would be good for the Justice Department to release some of the information about the extraordinary steps, or the steps they did take to try to cooperate with the former President,” Rounds said on NBC’s “Meet the Press.”
“I also think this will bring into question one constitutional issue that has not been talked about, and that is whether or not a president can declassify or classify certain items,” Rounds said.
Presidents do have substantial powers to declassify information. But ex-presidents do not. And there is so far no clear evidence of any process undertaken by Trump to officially declassify the documents when he was in office. And even if the material was declassified, possible lax storage arrangements at his residence could still have posed a national security threat. Furthermore, none of the three laws cited in the criminal warrant solely hinge on whether information was deemed to be unclassified, which may make the declassification point somewhat irrelevant anyway.
It is also unclear why an ex-President needed such information.
“What was the motivation for accumulating them, moving them to Mar-a-Lago?” James Clapper, a former director of national intelligence, said on CNN’s “Newsroom” on Saturday. “I don’t understand what the purpose was. I mean, you know, the imagination can run wild here as to what the potential purpose or motivations might have been.”
The question of why the Justice Department thought it was justified in sending the FBI into Mar-a-Lago is perhaps the most important outstanding issue – and could be clarified by fresh reporting about Trump’s legal team.
Two sources familiar with the matter said that one of Trump’s lawyers asserted in June that there was no more classified information stored at the residence. The National Archives, which has responsibility for collecting and sorting presidential material, has previously said at least 15 boxes of White House records were recovered from Mar-a-Lago, including some that were classified, before the batch that was removed last week.
The letter signed by the attorney raised the question of how many people could be facing legal exposure if the information taken from the resort last week was indeed classified. And it could help explain why obstruction of justice is one of the possible criminal offenses mentioned in the search warrant.
“I don’t know whether the individual who sent that letter had personal knowledge of what the actual scenario was,” said Carrie Cordero, a former senior Justice Department official who is now a CNN legal and national security analyst.
“But I do think it indicates that there are more individuals besides just the former President who potentially have legal exposure here.”
A week on from the FBI operation, the political reverberations are only growing. The outburst of fury from Republicans and wild claims that Biden was operating a police state reaffirmed that the horror of the US Capitol insurrection did nothing to restrain Trump’s supporters – including some mainstream GOP leaders. The conservative backlash led to threats against the judge in the case and FBI agents, suggesting that violence still simmers below the surface of a country that is deeply and dangerously divided.
The last week also showed Trump’s trademark capacity to tarnish the institutions of government designed to bolster the rule of law and counter the power of presidents (and ex-presidents) who chafe at following the rules. His conduct is often so unconstrained that attempts by centers of power like the Justice Department to hold him to account lead them into treacherous political waters that cause Trump to make wild claims of a conspiracy against him. That sense of victimization is one of the key ingredients of his hold over the Republican Party and is sure to become central to his widening showdown with the Justice Department.
And the events of the last week – and the willingness of much of the Republican Party to jump to Trump’s defense, even at the risk of inciting violence – have previewed the national trauma that could be in store if Trump is indicted in this investigation or in other criminal probes over his conduct. This includes several investigations linked to his attempt to overthrow the 2020 election and interrupt the peaceful transfer of power based on his falsehoods about voter fraud, which were thrown out by multiple courts.
As the legal questions widen, the political impact of the search on Trump’s residence is also deepening. In the immediate aftermath of what was an unprecedented move against an ex-President, Trump incited a backlash that supercharged his likely 2024 presidential effort. And the wave of Republican outrage convinced possible rivals for the GOP nomination, like Florida Gov. Ron DeSantis and ex-Vice President Mike Pence, to stand by him and criticize the FBI search.
Still, the return of Trump to the headlines has reminded many Americans of the angst and polarization that alienated the broader national electorate and cost him the 2020 election. The search also put the focus on the extraordinary clutch of criminal, civil and congressional probes hanging over the former President’s head that would spell disaster for any normal political candidate.
The controversy over Trump also had another political effect: it overshadowed Biden’s best week as president so far, which was crowned by the passage of his landmark climate and health care package.
But Biden’s success will not be judged on last week alone. The true test of his momentum will come in midterm elections in November that Democrats have dreaded. But the juxtaposition between Biden’s progress – which has now given vulnerable Democrats more to campaign on this August recess – and Trump’s deepening legal woes promises to become an early point of comparison in their possible 2024 White House rematch.