Wednesday, August 24, 2022

Ex-Gorsuch Law Clerk Takes a Blowtorch to the Imaginary Law Violations the FBI Cited in Trump Raid

Ex-Gorsuch Law Clerk Takes a Blowtorch to the Imaginary Law Violations the FBI Cited in Trump Raid

It's a move that House Republicans should consider when they regain the majority in November, but will they do it? In the aftermath of the unlawful August 8 raid on Mar-a-Lago, the Republican Party has been united in its revulsion of what appears to be an unprecedented ransacking of a former president’s home. The legal justification doesn’t pass constitutional muster. There seems to be no crime committed, only that the National Archives grew impatient over record retrieval. That’s not a crime; people dragging their feet regarding government documents is quite common in DC. 

Mike Davis has gone on epic threads on social media gutting the case the government has made for the raid. Davis, a former law clerk to Justice Neil Gorsuch, decided to take his legal takedowns of this arguably illegal search and reorganize it into an opinion column for Newsweek. He took the position many have felt for a long time: FBI Director Chris Wray, and now Attorney General Merrick Garland should be removed from office. He also added that it's telling why AG Garland did not seek the opinion of the DOJ's Office of Legal Counsel about signing off on the search warrant (via Newsweek):

All presidents take mementos and other records when they leave office. They don't pack their own boxes. The National Archives takes the position that almost everything is a "presidential record." And the federal government, in general, over-classifies almost everything.

Even if Trump took classified records, that isn't a crime. The president has the inherent constitutional power to declassify any record he wants, in any manner he wants, regardless of any otherwise-pertinent statute or regulation that applies to everyone else. The president does not need to obtain Congress' or a bureaucrat's permission—or jump through their regulatory or statutory hoops—to declassify anything. The Supreme Court reaffirmed this in the 1988 case, Department of the Navy v. Egan : "The President, after all, is the 'Commander in Chief of the Army and Navy of the United States.' U.S. Const., Art. II, § 2. His authority to classify and control access to information bearing on national security...flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant."

Thus, if Trump left the White House with classified records, then those records are necessarily declassified by his very actions. He doesn't need to label that decision for, or report that decision to, any bureaucrat who works for him. It is pretextual legal nonsense for the Biden Justice Department to pretend Trump broke any criminal statute. Indeed, it is noteworthy that Attorney General Garland apparently did not seek an opinion from the Justice Department's Office of Legal Counsel (OLC)—the de facto general counsel for the executive branch—before ordering this home raid of his boss's chief political enemy. Perhaps Garland knew OLC wouldn't give him the answer he wanted.


All former presidents also get a federally funded office, called the Office of the Former President. They get lawyers and other staff, security clearances, Secret Service protection, and secure facilities (SCIFs) for the maintenance of classified records. Even if Trump had classified records, then, they were protected and secure.


FBI Director Christopher Wray recently testified that the FBI was too busy to stop dangerous and illegal intimidation campaigns outside Supreme Court justices' homes. This was after an attempted assassin was thankfully arrested outside Justice Brett Kavanaugh's home. The FBI apparently didn't have the time to investigate actual threats to the lives of constitutional officers, but it had plenty of time to raid the home of a former president over an 18-month-old records dispute—with which Trump publicly stated he was fully cooperating.


House Republicans must impeach Attorney General Garland and FBI Director Wray for their unprecedented and destructive politicization of the Justice Department, when they reclaim power in January. And over the long term, House and Senate Republicans must dismantle and rebuild the FBI, so political raids like this never happen again. We cannot allow our law enforcement agencies to become third-world political hit squads.

It's a line-by-line takedown of the DOJ’s overreach. The Presidential Records Act isn’t a criminal statute. Since Trump was president, the removal of alleged classified materials isn’t a crime. The president is the ultimate decider on classification status, which dresses down the violation of the Espionage Act allegation as lunacy. 

Davis also highlights the gross incompetence and hyper-politicization that has engulfed the Justices Department, noting the FBI’s inability to protect sitting Supreme Court justices from death threats after the Dobbs decision, which overturned Roe v. Wade, because they were too busy. And yet, the FBI had plenty of time to pursue this search of Mar-a-Lago with a 30-person team following a treasure hunt over allegations that aren’t crimes regarding Donald Trump and classified materials. People were showing up at the homes of Supreme Court justices; some were armed and prepared to commit political acts of violence over abortion. That was real. The purported classified documents at Mar-a-Lago are not actual law violations, but Garland’s presser, which gave this smash-and-grab a federal blessing, tossed him into the same rogue camp as Wray. 

House Republicans promised investigations into these egregious acts of extrajudicial operations conducted by the DOJ.  They better make good on those overtures, leaving the door open for possible impeachment articles against these two men.

No comments:

Post a Comment