On the Mar-A-Lago Raid … and Al Capone

[First, a qualification:  although I have heard legal analysts comment that the FBI’s recent search of former President Donald Trump’s Mar-A-Lago estate was not a “raid” because it was seemingly undertaken entirely according to lawful procedures, the word, “raid,” is nonetheless used at points in this note because it is significantly easer and shorter than the phrase, “a search conducted by the FBI pursuant to a warrant issued by a federal judge upon a finding of probable cause that evidence would be discovered leading to conviction of a crime.”  😉 ].

I suggested in an earlier post that in U.S. Attorney General Merrick Garland’s place, what might cause me to refrain from bringing criminal charges against Mr. Trump – despite my beliefs that no one is above the law, and that there is cogent evidence that Mr. Trump is guilty of seditious conspiracy – was the practical problem of empaneling 12 open-minded jurors in an environment in which at least a third of Americans are in Mr. Trump’s cult.  I would feel – and strongly suspect that Mr. Garland feels – that for the good of the country, one cannot afford to bring criminal charges against Mr. Trump, and lose.

That said, my reluctance was expressed when considering and in the context of crimes that inevitably have a subjective element – and thus, the potential for Mr. Trump’s plausible deniability – including not only seditious conspiracy but crimes such as the instances of obstruction of justice described by Special Counsel Robert Mueller in Volume II of his report.

In apparently determining to first pursue Mr. Trump under the Presidential Records Act (the “PRA”), Attorney General Merrick Garland and the Department of Justice (the “DOJ”) team are seemingly being pretty tactical, but pragmatic.  They have perhaps chosen to start with an arguably relatively innocuous statute – at least as compared to the legion of other, potentially more momentous, charges for which there appears to be compelling evidence against Mr. Trump – because proving a PRA offense could be the most objective, and thus, the easiest to establish.  (That said, how harmless the offense might be will obviously ultimately depend on what, if any, material Mr. Trump might be proven to have illegally kept; more on this below.)  It’s up or down, black or white.  Mr. Trump either had illegally retained documents under his control at the time of the raid, or he didn’t.  Clearly, Mr. Garland – and the federal judge authorizing the Mar-A-Lago search warrant, based upon the DOJ affidavit presented in support of the warrant application – had a strong belief that he did.  If such records were on the Mar-A-Lago estate, presumably the FBI now has them.  Since negotiations regarding these records have reportedly gone on for months between Mr. Trump and federal authorities, it will seemingly be difficult for the former president to claim that he didn’t know that he had them (if he indeed did).  The DOJ perhaps considers the PRA the simplest vehicle to establish a straightforward violation with the potential for securing a relatively quick conviction.

Even so – and despite all the chortling by liberal media outlets – the obtaining of a search warrant and the execution of the attendant search doesn’t constitute an indictment, much less a conviction, of Mr. Trump.  Even if he is ultimately indicted and convicted, a fairly quick internet search of legal authority sets forth a legal view that such conviction would not, despite the PRA’s purported prohibition upon a perpetrator’s holding of federal office, prevent Mr. Trump from seeking and assuming the presidency because Congress doesn’t have the power to add hurdles to a citizen’s right to become president that are not set forth in the Constitution.

The ramifications of this week’s raid may ultimately be determined by what was retrieved.  If something truly significant was recovered, and can be publicized, such will seemingly have an impact upon Mr. Trump’s political fortunes as well as his personal freedom.  (I note with interest reports that Mr. Trump’s legal and media defenders – who for the most part probably have no better idea than anyone else what might have been recovered – are suggesting that the FBI might have “planted” evidence on Mr. Trump, laying the groundwork to enable them to sow doubt about any serious transgression in the minds of Mr. Trump’s credulous followers.)  On the other hand, if what Mr. Trump had in his possession merely amounts to a technical but inconsequential violation – what basketball fans call a “ticky-tack foul” – such could have little effect on Mr. Trump’s political aspirations or perhaps even generate sympathy for him among the moderately-conservative voter segments whose support he needs to reclaim the presidency. 

As Mr. Trump was fond of saying during his presidency:  We’ll see what happens.  Maybe this week’s raid will amount to something; perhaps it will amount to nothing.  However, and as many are aware, Al Capone was never convicted of murder, extortion, or bootlegging; he was ultimately brought low by a conviction for income tax evasion.  Perhaps Mr. Trump will suffer a similar fate due to an infraction far afield from the many, seemingly more significant, betrayals of our republic for which there is persuasive evidence of his guilt.