☕️ Coffee & Covid ☙ Saturday, August 27, 2022 ☙ THE AFFIDAVIT 🦠
A roundup of Biden Raid Affidavit news along with some things you might not have heard anywhere else; and Governor DeSantis lowers the boom on four Broward school board members.
Good morning, C&C, and welcome to the weekend edition! This morning I roundup all the news about the Biden Raid search warrant affidavit, along with my own impressions and perspective. And there’s some great news from Florida, as Governor DeSantis delivers some long-awaited justice.
Since everybody in the social media world is also reporting on the Affidavit, I’m going to try to avoid redundancy, try to point out a few things I’ve noticed but haven’t seen mentioned anywhere else, and give you one practicing lawyer’s perspective on the process.
🗞*COVID NEWS AND COMMENTARY* 🗞
🔥 This looks bad. REALLY bad. According to the FBI’s partially-redacted affidavit released yesterday afternoon, Trump maintained a secret email server at his home through which he surreptitiously ran all his classified communications. Then, investigators discovered that lots of hostile foreign governments had hacked the server and read all kinds of classified secrets. And then, when asked about the server, Trump used special software normally used by organized crime, to completely erase the hard drives, and then he physically destroyed all the evidence by smashing the hard drives into bits.
Oh, wait. That was Hilary. Oops! Wrong folder, sorry.
Here we go.
🔥 In its summary section, the Affidavit — as expected — was so heavily redacted that it does NOT establish probable cause for a raid of a former’s president’s home, despite what some otherwise smart pundits argue. Plus, there were other tools available to the FBI, like a subpoena, but they went with the most invasive and violent choice instead, and the Affidavit does not explain that remarkable decision. I’ll return to this point in a bit.
🔥 Here’s how it started. Between May and December 2021, deep-state bureaucrats at the National Archives and Records Administration (NARA or the National Archives) pestered Trump’s people about a small number of presidential documents that NARA thought should’ve been turned over to the Archives instead of stored at Mar-a-Lago.
Those conversations ended in early January when Trump returned fifteen boxes of documents to NARA. Fifteen banker’s boxes of documents is NOT a lot. For reference, even my smallest trial cases consume more than fifteen banker’s boxes of documents. In one case, now settled, my client recently got around to picking up five year’s worth of payroll records; those ALONE filled about twelve banker’s boxes, never mind all the OTHER documents related to the case.
So fifteen boxes of documents from a four-year Presidential term is really nothing.
According to the Affidavit, the fifteen boxes Trump sent to NARA included “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records,” and mixed in with everything else, a handful of documents having secret classification markings.
The classified materials could’ve fit into a couple large manila file folders.
You can imagine the gleeful laughter around the NARA office when they fly-specked the fifteen boxes and yanked out the ones with classified markings. So what’s a diligent anti-Trump deep-state bureaucrat to do? Report a crime, of course! In February, NARA essentially filed a police report with Biden’s DOJ, which immediately called a grand jury and began an investigation.
It’s DEFINITELY not politics. Shame on you.
🔥 You may recall that immediately after the raid, Joe Biden was CLEAR. He didn’t have ANYTHING to do with the raid; it was purely a law enforcement matter. In fact, he said, he didn’t even KNOW they were investigating Trump, never even heard about it.
We now know Joe lied. Shocking, I know. It turns out there was a major impediment to the FBI’s legal ability to search a former president’s home: Presidential privilege. The privilege completely protects a former President’s confidential records and communications. It was a thorny problem.
But don’t worry! Joe and his lawyers found a loophole: Joe, acting as the CURRENT President, conveniently waived aside the Presidential privilege FOR TRUMP, on the theory that the acting President holds the right to waive or preserve the privilege, no matter which President first asserted it.
Is the waiver legal? Who knows. Who cares! It’s never been done before. But it gave the FBI the cover it needed to move forward with the raid, and since he didn’t KNOW Joe had waived his privilege, Trump couldn’t fight it. Checkmate.
Joe is dumber than a crate of pop rocks. I hope the next Republican president waives the presidential privilege for EVERY OTHER PRESIDENT going back to George Washington. BAM.
And … where’s all the outcry and protest from the other former Presidents? Hello? Bush? Bueller? Anybody? And of course, the useless corporate media is completely silent. You can’t find any major article discussing this historic Biden legal wrangling, not at all.
🔥 As I’m sure you’ve already heard, the Affidavit is heavily redacted:
That’s not surprising, we expected heavy redaction. The Affidavit’s introduction, which contains a bunch of conclusory statements about probable cause, defamatory remarks about Trump, and the early case timeline, is mostly intact. But in every single instance where the FBI cited to any FACT that could support the Affidavit, that fact is completely redacted.
Because of this, possibly the most important thing to know about the Affidavit is that there are NO FACTS supporting the need for the raid. We must assume that some relevant facts are concealed in the redacted parts. In other words, the redacted Affidavit does NOT establish probable cause for the raid, which was what everyone was waiting to see.
Haha, even the FBI’s reasons for redacting the Affidavit were themselves redacted:
Double redacted! The only unredacted rationale remaining for redaction is “agent safety,” proving that the FBI is afraid of the American people and views us as the enemy.
Remember, Magistrate Reinhart could have, but did not, press the FBI to unredact more of the Affidavit. He just went with THIS.
🔥 One thing that we CAN tell from the redacted Affidavit is exactly what the FBI is accusing Trump of doing. At bottom, all they are criminally accusing the former President of is STORING CLASSIFIED DOCUMENTS IN AN INAPPROPRIATE PLACE.
That’s it. It’s 100% a process crime. They did NOT allege Trump gave classified documents to anybody, except himself. They did NOT allege that anybody took or even looked at the documents without Trump’s knowledge, and the FBI even watched lots of Mar-a-Lago video to try to find someone.
Now consider the fact that Mar-a-Lago enjoys full Secret Service protection. It’s hard to imagine higher security than that. And the FBI admitted the documents were always under video surveillance. So, the FBI isn’t even arguing that the documents weren’t SECURE. It’s just that they weren’t secured in the RIGHT WAY.
It’s amateur hour.
🔥 I pulled out the key paragraphs in the Affidavit discussing the alleged crimes, so that you can see I’m not exaggerating or leaving anything out. The very first paragraph explains:
1. The government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records.
That’s it. That’s the whole “investigation.” To confirm the documents were stored in “unauthorized spaces.” They might’ve just asked Trump, “did you keep the documents in such-and-so closet at Mar-a-Lago?” He would’ve said, “yep,” and then there’d be no need for a raid. Dummies.
The Affidavit’s third paragraph further confirms my take:
3. … the materials contained in the FIFTEEN BOXES  were stored at the PREMISES in an unauthorized location… Further, there is probable cause to believe that additional documents that contain classified [National Defense Information] or that are Presidential records subject to record retention requirements currently remain at the PREMISES. There is also probable cause to believe that evidence of obstruction will be found at the PREMISES.
Haha, obstruction. That’s like “resisting arrest,” they always bolt that one on to whatever else the person is charged with.
You guys with me so far? So far, we only have the crime of storing classified records in an “unauthorized location.” It’s just a process crime.
🔥 According to the Affidavit, in July the DOJ sent Trump’s lawyers a letter complaining about the lack of an official “secure location” at Mar-a-Lago and demanding that all presidential documents taken by Trump be “preserved.” Preserved at Mar-a-Lago, the supposedly unauthorized location. And in their “current condition” — unauthorized. Until further notice, like a surprise raid.
You can’t make this stuff up:
Down in the Affidavit’s 77th paragraph, when it was summing up the charges, again the FBI fell back on the “unauthorized” nature of Mar-a-Lago as a storage location, rather than any actual or even potential security threat:
77. Based upon this investigation, I believe that the STORAGE ROOM, FPOTUS’s residential suite, Pine Hall, the ’45 Office,’ and other spaces within the PREMISES are not currently authorized locations for the storage of classified information or [National Defense Information]. Similarly, based upon this investigation, I do not believe that any spaces within the PREMISES have been authorized for the storage of classified information at least since the end of FPOTUS ’s Presidential Administration on January 20, 2021.
It wasn’t authorized!
In a typical affidavit sleight-of-hand, at one point the FBI darkly hints — but does not explicitly claim — that even MORE classified records were shifted from Mar-a-Lago, AFTER the fifteen boxes were sent to the National Archives on January 9th. The Affidavit claims, “at least two moving trucks were observed at the PREMISES on January 18, 2021.”
That’s it. They don’t actually claim that Trump snuck classified documents away nine days after sending fifteen boxes back to NARA, at least it doesn’t allege that in the unredacted parts. And it is hard to imagine how an allegation like that would not be unredacted.
The reason the moving trucks are in the Affidavit is to make the judge suspect there’s funny business going on. But hilariously, the moving truck allegation actually undermines the entire premise for the search. In other words, if the FBI thought Trump cleared the evidence out of Mar-a-Lago on January 18th in two moving trucks, then … why raid Mar-a-Lago, the one place you know the evidence ISN’T?
So in that way, the Affidavit is self-contradictory. Numbskulls.
🔥 Here’s a thought experiment for you. I don’t know the answer to this question, but this is what I’d ask any of the really smart constitutional lawyers looking at this situation if I got the chance.
Consider this hypothetical. The President receives a classified “eyes only” intelligence report saying that some Iranian terrorists are smuggling a dirty bomb into Jerusalem and plan to detonate it in four hours. There’s no time to wait.
First, what would happen if the President faxed that classified document to an unauthorized foreign ally — the Prime Minister of Israel? Would that break the law? Could the President be impeached for this? Or, does the President have full authority to disclose that classified document if he thinks it’s necessary and proper?
Next, does the President have to ask PERMISSION before sending a classified document to someone he thinks should get it? Who does the President have to ask? How long does he have to wait to get permission to declassify the document in an emergent situation? In other words, is the President bound by the classification procedures of the people who work for him?
All the Supreme Court case law on classification suggests that if the President sent the report to the Prime Minister of Israel would NOT be a crime, which is exactly what you’d expect. And if the President can declassify documents in an emergency, why can’t he do it any other time?
Now let’s think about unauthorized storage. Suppose the President was already meeting the Prime Minister at a dinner in an hour. Instead of faxing it, could the President put the classified report in the breast pocket of his suit jacket, so he could show it to the Prime Minister when he got to the event? His pocket isn’t locked up. It’s not “authorized.” In fact, his suit completely lacks any system for logging classified documents in and out.
Would the President be guilty of one of the FBI’s alleged process crimes for “storing” the classified dirty-bomb report in an “unauthorized location,” his pocket?
I doubt it. I doubt it a lot.
🔥 Here is the Affidavit by the numbers.
The Affidavit was only 38 pages long including attachments. That seems pretty short given its historical significance.
The FBI redacted 20 of 32 pages of the main part of the Affidavit.
About half of the affidavit’s contents are redacted in all. All the factual parts supporting probable cause are redacted, like the part where a witness claims Trump tried to grab the Beast’s steering wheel. Haha, just kidding about that one. It might be there though.
Long continuous sections of the Affidavit are redacted, page after page, including most of pages 11 through 16, 19 through 22, and 23 through 29.
According to DOJ leaks published in the New York Times, in the fifteen boxes returned in January, a total of only 184 documents had classification markings, including just 25 labeled “top secret.”
Only 67 documents were marked as CONFIDENTIAL.
Only 92 documents were marked as SECRET.
Only 25 documents were marked as TOP SECRET.
These added up to only about 700 total pages of classified documents including cover pages, blank pages, redundant pages, and pages with nothing actually classified on them. To put that 700 pages in perspective, a ream of copy paper is 500 pages. So we’re talking a ream and a half out of fifteen banker’s boxes of paper. A banker’s box holds ten reams of paper. One can imagine that 700 pages could be easily slipped among fifteen banker’s boxes worth of documents, if a bad actor was trying to set somebody up.
I’m not saying anything. I’m just saying.
🔥 The Affidavit’s single attachment is a letter from Trump’s lawyers dated May 25th, 2022. In the letter, Trump’s lawyers described the NARA documents with classified markings as “unknowingly included among the boxes brought to Mar-a-Lago by the movers.”
The Affidavit does not dispute that claim.
Trump’s lawyers also cited case law providing that Presidents have unilateral authority to declassify documents, and noted that at least one of the FBI’s criminal statutes doesn’t apply to Presidents at all. They asked that the letter be included with any warrant application as exculpatory evidence, and it was attached as the only exhibit.
No allegedly classified documents were attached as exhibits, so the Magistrate had no way to evaluate what they were all about.
The Affidavit does not dispute the President’s authority to declassify documents. The Affidavit does not discuss that issue at all, except to note that Trump asserted it.
But more significantly, because the letter asks to be attached to any search warrant affidavit, it shows Trump’s lawyers smartly recognized in late May that it was likely or at least possible that Mar-a-Lago would be searched. And the fact that Trump’s lawyers knew wasn’t a secret, since they were corresponding with DOJ’s lawyers about that.
So … what justified the raid? It couldn’t have been that the FBI was worried that evidence might be destroyed or removed in August. Trump’s lawyers expressly referred to a potential search warrant in MAY, so he clearly had plenty of time to remove things, even if they hadn’t been taken away in the two moving vans in January.
🔥 So now we know a lot of things corporate media and the government have lied about.
First, nothing in the Affidavit remotely suggests the confidential documents included nuclear secrets, which in the days following the raid was what the media said its anonymous sources reported as the urgent reason for the surprise raid.
Second, nothing in the Affidavit suggests there was any kind of legal emergency justifying the raid. In fact, the Affidavit contradicts the very idea of an emergency; the FBI knew about the classified documents all the way back in FEBRUARY. And as I noted, even Trump’s lawyers suspected a possible search in MAY.
What took so long?
Third, also as noted above, Biden lied when he said he didn’t know about the raid, because he had to waive Trump’s Presidential privilege to allow the raid to proceed.
Finally, the Affidavit undermines the raid rationale that Trump was uncooperative. It admits he voluntarily sent the fifteen boxes back in January. It states that Trump’s lawyers cooperated with securing and preserving the storage room. There are no facts in the unredacted portion of the Affidavit suggesting that Trump refused to cooperate with anybody.
Here’s the thing. If you have a strong case, you don’t HAVE to lie. Lying suggests your case stinks.
🔥 The redacted Affidavit is also remarkable for what it OMITS.
There’s no rebuttal to Trump’s argument that Presidents can declassify documents just by saying so or acting like they’re declassified.
The Affidavit does not appear to include any exculpatory evidence or mitigating facts, such as the fact that Mar-a-Lago is secured by the Secret Service. Exculpatory facts are required to be included in search warrant applications.
The Affidavit does not say who packed the boxes, which appears to be one of the critical facts. If Trump didn’t pack them, then how can he have “willfully” taken classified documents?
The Affidavit includes applicable law favorable to the government, but completely omits any favorable court decisions, such as those holding a President has unlimited ability to declassify.
None of these things would credibly be redacted, so it’s safe to assume the Affidavit omitted them.
🔥 As I said, there are hundreds of hot takes today on social media. But here’s what two smart constitutional scholars, both on the left, said about the raid.
Jonathan Turley, Shapiro Chair of Public Interest Law at George Washington University, seems very skeptical after reviewing the Affidavit:
Alan Dershowitz, a respected constitutional scholar and democrat, wrote an op-ed for the Hill yesterday titled, “The Trump Affidavit: Four Conclusions on Guilt and Evidence.” As the title suggests, he makes four points.
Dershowitz was trying for balance. Two of his points argued there were sufficient facts in the Affidavit and leaked reports to support probable cause and even an indictment. While Dershowitz said ‘yes’ to both questions, he also noted that the standard for both probable cause and indictments is very low. He opined that, even if Trump could be indicted, under what Dershowitz calls the Nixon standard and the Hilary Clinton standard, Trump should NOT be prosecuted under these facts.
Dershowitz’s other two points were that the Affidavit seems to clearly violate the Fourth Amendment by being overbroad, and it also fails to show why a subpoena wouldn’t have been more appropriate than a raid:
It is precisely because search warrants are so easy to obtain that Attorney General Merrick Garland correctly stated that the Justice Department should seek them only when there is no other reasonable option. The unredacted portions of the affidavit do not seem to meet Garland’s own standard.
So Dershowitz’s op-ed agrees with me.
🔥 Finally, President Trump’s characteristic response:
🔥 Changing subjects, for some very encouraging news, National Review ran a story yesterday headlined, “DeSantis Suspends Four School Board Members for Neglect of Duty after Parkland Shooting Report.”
Yesterday, Governor DeSantis suspended four Broward county school board members for “incompetence.” And I don’t think he’s going to be called a “dictator” this time. They REALLY deserved it.
The school board members were suspended because a grand jury investigation into the Marjory Stoneman Douglas High School shooting concluded that the school district showed “clear evidence of incompetence, neglect of duty, misfeasance or malfeasance” when it came to school safety.
Among other findings, the grand jury concluded that the school board members mismanaged the SMART Program, a multimillion-dollar bond intended for school safety and renovations.
For years, bereaved Parkland parents believed the school board was responsible for the deaths, for implementing ineffective woke disciplinary policies and diverting grant money that should have gone to safety equipment and staff to woke programs instead.
Yesterday Governor DeSantis finally brought some long-overdue justice for these unfortunate — and angry — parents. For far too long, public officials have seemed completely unaccountable for their terrible decisions. Governor DeSantis supplied some real accountability yesterday. Arrests would have been better, but this is a strong start.
Have a superlative Saturday! We’ll kick the week off right with a fresh cup of C&C on Monday morning.
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Ugh on the affidavit. As a former, now thankfully retired, national security crimes investigator I almost threw up when I read the redacted affidavit. There's plenty to read between the lines to know this was a pure political hit job. The elements of the crime of espionage aren't even close to being met and IMO, this will not end up in any court; it'll be just another embarrassment to the FBI, DoJ, and this administration. DoJ knows it and we know it. If a President's mere storing of records at his home under lock and key is a crime, then let's go after every living former POTUS, because I guarantee Obama, Bush, Clinton, and Carter are storing classified documents and all claim presidential privilege. As an aside, the reason I am glad I am retired is because I'd likely be fired for refusing to carry out illegal orders. Shame on every single FBI agent who participated and is participating in this farce as a political stooge instead of speaking out against the politically motivated and illegal activities of this administration and standing on the right side of the law.
Sun Tzu says: "All war is based on deception." Our own government is deceiving us because our own government is at WAR with us. It's time to wake up to that fact.