Why Did The FBI Raid Mar-a-Lago?
This op-ed was co-authored by John Yoo and was originally published in Newsweek on August 11, 2022. John Yoo is the Emanuel Heller Professor of Law at the University of California at Berkeley.
Why did the Biden administration order an unprecedented raid on the Florida home of former president Donald Trump—a nine-and-a-half-hour raid by some 30 federal agents that covered the whole of the Mar-a-Lago estate, including the bedroom and the family’s private quarters?
There are four possible answers, none of which were laid to rest by Attorney General Merrick Garland‘s press conference this afternoon (which only made promises to ask the court that approved the warrant to unseal it).
First, it might have been because of an administrative dispute between the former president and the National Archives over whether Trump had fully complied with the Presidential Records Act. According to CNN, “Following the National Archives’ recovering of White House records from Mar-a-Lago in recent months, the FBI on Monday had to verify that nothing was left behind.”
If that is all there is to it, then the raid was outrageous. There is no obvious reason the National Archives and the Department of Justice could not have pursued that objective with a subpoena rather than a search warrant, or by continuing to negotiate with Trump and his lawyers over any allegedly missing documents. According to reports, Trump’s attorneys, led by Evan Corcoran, had been cooperating fully with federal authorities on the return of the documents to the National Archives and Records Administration. In May, Corcoran granted FBI agents access to Mar-a-Lago’s storage room, where they spent several hours searching through boxes.
Even if some of the missing material was classified—a big assumption, since Trump might have declassified it while still in office—there was no apparent urgency about securing its recovery. The FBI did not raid the homes of Hillary Clinton or her staffers, nor did the Justice Department prosecute any of them, even though Clinton had used a private email server to send top-secret information, and then had destroyed the illegal server. Why should Trump have been treated so much more harshly?
Second, some have suggested that the purpose was to pursue a criminal case against Trump under section 2071 of title 18, which makes it a crime willfully and unlawfully to remove or destroy protected federal documents. Section 2071 contains a disqualification clause. The statute says that upon conviction, the defendant shall “be disqualified from holding any office under the United States.” On this theory, the purpose of the raid was to gain possession of evidence that could be used to convict Trump under this provision, and so to bar him from becoming president again.
That theory cannot be right. Section 2071 may not even apply to the office of the presidency. Under the Constitution, the president is not an “officer of the United States.” In Free Enterprise Fund v. Public Company Accounting Oversight Bd. (2010), the Supreme Court stated that “the people do not vote for the ‘Officers of the United States.'” “Officers of the United States” in the constitutional sense are unelected officials like federal judges or Cabinet appointees, not elected officials like the president, vice president or members of Congress. If the meaning of “office” in section 2071 is coextensive with the constitutional meaning, then even a conviction under the statute would not bar the defendant from holding the presidency.
Of course, it’s possible that the constitutional meaning is narrower than the statutory meaning. Even if so, a conviction under the statute would not be disqualifying. Article II of the Constitution, which concerns the presidency and its powers, sets forth the qualifications for being president. It says:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
For two main reasons, Congress cannot add any further qualifications to those that Article II prescribes. First, under the Supreme Court’s 1995 Term Limits v. Thornton case, Article I’s qualifications for being elected to congressional offices were held to preclude the addition of any further requirements (as States that had legislated term limits had done). What was true of Article I is certainly true of Article II. Second, if Congress could add statutory qualifications to those imposed by the Constitution, it could effectively control the choice of president. That would undermine the principle of separation of powers, which is fundamental to the Constitution.
There was another constitutional method for barring Trump from being reelected to the presidency. That was the impeachment process. If the Senate had convicted Trump on the charges twice brought against him by the House and disqualified him from the presidency in the future, that disqualification would stand. But of course both attempts to convict Trump failed.
We have to assume the Department of Justice is aware of these arguments, even if some of Trump’s more fervid political opponents are not.
Third, as Andrew McCarthy has suggested, the true aim of the raid was to find evidence that might implicate Trump in a criminal conspiracy to disrupt the electoral vote count on January 6, 2021. McCarthy doubts that such a prosecution would succeed. But the desire to bring such charges might well have motivated the raid.
The fourth and most plausible explanation is simply that the raid was politically motivated. Trump is quite likely to be the Republican presidential nominee in 2024. At the moment, the polling indicates that his chances of winning reelection look good, especially if he runs against Biden. Trump has been very visible of late, promoting his preferred candidates in GOP primary races with considerable success.
Meanwhile, the Biden administration’s record in a host of critical areas—inflation, crime, illegal immigration—has been dreadful, and the Democrats in Congress face the high likelihood of a monumental defeat in November. Biden and his allies have every reason to try to distract the voters from the administration’s disastrous policies and to make the midterm elections center around Trump. Moreover, they seem obsessed with preventing Trump from being on the ballot in 2024; the spurious Russian collusion narrative, two failed impeachment attempts, and even the January 6 Committee investigations were all aimed at preventing the American public from reelecting Donald Trump.
To be sure, the raid might have uncovered powerful evidence of serious criminality—and not just been a mere administrative spat. But the Department of Justice and the FBI have yet to show that. The burden of justifying the August 8 raid falls squarely on them. Both agencies are already deeply mistrusted in the eyes of the public they purport to serve. They had better have a damned good explanation for what they have just done.