Legal analysis of the Mar-a-Lago raid

PAUL BUTLER, HOST: Up next: a legal look at the FBI’s Trump investigation.

The Justice Department is resisting calls to release the affidavit that supported the search warrant used for the FBI’s search of Donald Trump’s Florida estate.

They say that to do so would reveal highly classified material, and other information that could irreparably damage an ongoing criminal investigation.

The former president, for his part, is accusing the FBI of partisan political corruption. He’s also calling on the bureau to return some of the documents they seized, saying they’re protected under attorney-client privilege.

MYRNA BROWN, HOST: Last week, we spoke with Mark Caleb Smith about the political backdrop of the Mar-a-Lago search. This week, another Cedarville University professor, Marc Clauson, is here to analyze the case from a legal perspective.

He is a professor of History and Law. Good morning!

MARC CLAUSON, GUEST: Good morning!

BROWN: Well, professor, this is a politically charged case, but it is also legally complex. A court has unsealed the search warrant, but not the affidavit. What’s the difference between those documents?

CLAUSON: Yeah, the difference partly—they all go back to the Fourth Amendment, which is to be free from unreasonable searches and seizures, secure in our houses and papers and effects and issues like that in the Fourth Amendment. But out of that flows sort of a several step process. One of those things is you apply for the warrant, you get the warrant, you also have an affidavit with the warrant that goes along with the warrant. Now, the warrant itself specifies the particular legal provisions under which you're moving forward. And also some, what you want to seize or look at in a particular location. The affidavit is much more specific. It deals with the actual legal theories, who may have been a witness in this, may list witnesses, it may deal with what exactly—in more detail—what they found or want to find and who told them. So that is a much more sensitive document. It's true. And in many criminal cases, at least, it's not something that the prosecutor or the prosecution, in this case, the Justice Department wants to release because there are situations in which there can be witnesses compromised, or you can discourage witnesses to come forward. This doesn't look to be the same kind of case precisely, not the same level at least. So that's why this one's a little, it's a little iffy-er to be honest with you, although we don't know the details and that's the problem.

BROWN: What kinds of evidence might the bureau have to produce to get a search warrant? What’s the bar there that they have to clear?

CLAUSON: It doesn’t have to have the evidence at first. It has to have a probable cause that it will find the evidence. So apparently, from what we know and we don't know everything, but from informants or witnesses who have come to the FBI, have said he's got these things, papers in his house at Mar-a-Lago, and they may be sensitive or they are sensitive. Maybe somebody said that. And so they go to the magistrate judge, they say, Okay, here's what we think we're going to find. Here are the statutes that we think he's violated, if he has those. And that's it. There's no actual evidence yet until they go get it. Then they start to find out what it is.

BROWN: Well, it was originally thought that the FBI’s search centered on the Presidential Records act. But the warrant revealed he’s actually under investigation for potential obstruction of justice and Espionage Act violations.

What is the distinction there, and what is the significance?

CLAUSON: Well, for one thing, you have to say that you don't know whether any of these kinds of statutory provisions will stick. Oftentimes, the justice agency will simply throw a bunch of statutes in that they think would cover the particular issue that they're interested in. They don't really know whether any of that's going to work or not. So Espionage Act, how do you deal with that one? This requires an intent to do something wrong with a record in a particular way that would compromise the security of the United States. I don't think they really knew whether that's what they would find there. They're going on a hunch, or an informant's hunch. And they're not sure. But that's a more serious charge. There's no doubt about it. Obstruction of justice is also a serious charge that usually goes along with another charge, like Espionage Act or presidential papers, statutes, those kinds of things. So you obstruct the Justice Department from getting those papers that you think you should have had or the National Archives should have had. So, yeah, it's a serious charge, but we don't know whether that charge will hold up or not.

BROWN: An authorized Trump representative to the National Archives claimed that Trump issued a “standing order” that all documents he removed “were deemed to be declassified.” Does the president have that power, and how does it work?

CLAUSON: The president has that authority, but there are procedures he has to go through. Now, I will say, in this case, we need to see the actual documentary evidence that he went through those procedures. But he does have the power overall to do that. So that's not in question. The only question would be, did he go through proper procedure to do it? And I think his lawyer implies that he did. The Justice Department, obviously, at this point at least, thinks he didn't. But like I said, we don't have the evidence yet.

BROWN: One final question: Could this result in any way in Trump being prevented from running for president again?

CLAUSON: There was an argument about that. There is a statute that purports to prevent a president who's charged with a crime and convicted, certain kinds of crimes, to be ineligible to run for president again. However, the Constitution in Amendment Eleven does not say anything about any prohibition against the president running again, period. And if push came to shove, those two laws came to conflict with each other, the Constitution always has supremacy, assuming it's interpreted as we expect it to be interpreted in its normal sense. If that's the case, then Trump could run again.

BROWN: Okay, professor, thanks so much for your time and insight!

CLAUSON: Thank you. Good to be with you.

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