Wednesday, August 17, 2022




With the exception of Andrew McCarthy’s NRO posts and columns, the written commentary on the raid on Mar-a-Lago has been wanting. Today he devotes his weekly NRO column (behind the NRO paywall) to the unsealed search warrant. Andy wrote me this morning in response to my notes on the warrant. I am grateful to be able to add his comments to the mix. With his permission I’m posting his message in full below the break.

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This is about as close to a general warrant as it gets. There are no limitations, practically speaking, on what they could take. Yes, there is a focus on classified items, but it’s only a slice of the seizure authority.

Given the breadth of the warrant and the timing in connection with other investigative events (the Eastman and Clark searches, the grand jury subpoenas to Pence’s aides and the White House counsel lawyers, and the Rep. Scott Perry search warrant the day after Mar-a-Lago), it seems obvious that this is about Jan. 6 more than anything else.

I’m not saying they ‘re not interested in the classified information — I got some backlash for earlier this week for using the word “pretextual” as if I were saying the warrant was fraudulent or that they didn’t really believe classified intelligence was at issue. All I mean, very simply, is that their closet agenda (making a Jan. 6 case on Trump for conspiracy to defraud the U.S. and to obstruct Congress) is a higher priority for them than the ostensible purposes of the search (to reclaim classified information and, apparently, for amending the Presidential Records Act by executive creativity, so that it is now a criminal statute — unlike the statute that Congress actually enacted).

You are right that it is not clear what the proof is that Trump declassified the documents while he was president. But that’s a defense and the defense is often not clear at this stage of a criminal investigation (I doubt they are going to bring any classified information charges, so this may all be academic). The question raised by your observation is the interesting one, though: What does a president (as opposed to a subordinate official or an executive agency) have to do to declassify a document?

We’ve never litigated that before, and I think it pits the originalist understanding of the Constitution (all power vested in one official, the POTUS, who is bound only by the constitutional limits on his authority and does not have to comply with the executive branch directives he issues to subordinates) against the progressive vision of the Constitution (administrative agencies, including the law-enforcement and intelligence apparatus, which, though technically located in the executive branch, are controlled by regulations and protocols that make them largely independent of the president — who is expected to comply with those regulations when he operates in the relevant area … and therefore would be expected to comply with Executive Orders and regulations that prescribe declassification procedures).

I am in the originalist camp, so I don’t think Trump would have to do much to declassify, but (a) I’m not sure what “much” means (other than that its a question of fact, not law, taking in the totality of the circumstances), (b) I’m not at all sure that the Supreme Court would agree with me, and (c) as with the former Independent Counsel statute, whose passing we do not mourn, I doubt Democrats are going to like living in the world they’re creating once it’s biting them rather than Trump.

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