Washington Wednesday: The FBI raid on Trump’s Mar-a-lago estate

MYRNA BROWN, HOST: It’s Wednesday, the 10th of August, 2022.

So glad you’ve joined us for today’s edition of The World and Everything in It. Good morning, I’m Myrna Brown.

MARY REICHARD, HOST: And I’m Mary Reichard.

Today is Washington Wednesday, but instead of all eyes on 1600 Pennsylvania Avenue, all eyes are on 935 Pennsylvania Avenue, FBI headquarters.

On Monday night, dozens of FBI agents raided former President Donald Trump’s home in South Florida. According to his son Eric Trump, agents ransacked the Trump residence at the Mar-a-Lago resort and hauled away boxes of files and records.

BROWN: The FBI’s search is believed to center on files Trump took with him when he left the White House. The National Archive says those files may include classified presidential documents that must be preserved in Washington.

So what does this mean for the former president and for the FBI, which has come under fire in recent years over accusations of political partisanship within the bureau?

Joining us now to talk about it is Mark Caleb Smith. He’s a political science professor at Cedarville University, a Christian college in Cedarville, Ohio.

REICHARD: Good morning, professor, welcome back to the program.

SMITH: It’s always good to be with you.

REICHARD: What are we talking about here? What sorts of documents might Trump have taken that the National Archive would object to?

SMITH: We really don't know. And I want to be very clear here. I mean, we're operating with a little bit of speculation. But I think there are probably two kinds of records that they may be worried about. One would be classified information. Obviously, if there are security concerns there, they may be worried about that information, finding its way to another party that would make the United States vulnerable. And so there'd be a worry with classified material.

The other one would be information related to the President's time in office. We've really tried to since 1978, and the Presidential Records Act, we've really tried to preserve and maintain this record of the President's official duties while the President is in office. And so those things wouldn't be as legally problematic, obviously, compared to classified material. But it's also possible that that information contains matters relevant to criminal investigations and other things as well. And so we'll know more once we learn more about the the search warrants and what was in it precisely. But right now, that's my best guess.

REICHARD: What do presidents typically take with them when they do leave the White House?

SMITH: Presidents are certainly allowed to take personal correspondence, matters relating to their family, and other things, and maybe even information between them and other people that they work with that really aren't relevant to their official duties. But they're expected to preserve material that would give historians or scholars or other people sort of an insight into the workings of the White House itself. This law sort of harkens back to the Watergate era, Richard Nixon tried to take documents from his administration and destroy them. And this law really grew out of that conflict. So I think we have to assume that whatever we're looking at here, doesn't involve Mr. Trump's personal correspondence, but involves something else.

REICHARD: Is there any kind of precedent you can think of for an FBI raid on a former president’s home?

SMITH: You know, there's nothing even really remotely close. I guess you could say the closest that we've come was really the Watergate investigation that I just referred to. In there, Richard Nixon had a lot of conflict with the Senate that was investigating him at that point, as well as federal courts that had sort of subpoenaed material from the White House and demanded information, especially revolving around recordings in the Oval Office. Richard Nixon refused to turn that material over. Eventually, he gave some of the material but there is an 18 and a half minute gap in one of the audio recordings. And once that was discovered, and he really couldn't account for it that really began the end of the Nixon administration. So that was a conflict with the judiciary, with the Senate and with the President. This, you know, having the FBI execute a search warrant on a former president like this, there's really nothing like that we've ever seen before.

REICHARD: You know many of us will remember that Hillary Clinton had a private email server in her home, which allegedly contained classified government communications.

Professor, take us back to handling of that situation. How’s that different? What questions should the FBI answer with regards to it?

SMITH: You know, I think you've touched on a real key question here. If the FBI and the Department of Justice want to maintain legal credibility and political credibility. They have to appear to be sort of beyond and above politics. A lot of President Trump's supporters are going to point to Mrs. Clinton and say, “You know what, she didn't get prosecuted. There are real allegations there that she mishandled classified material. Why are the standards different here?” I really look forward to hearing the FBI and the DOJ talk about that, because at some point, I think they're going to have to, but let me give a couple of differences that emerge, I think, pretty quickly between Mrs. Clinton's case and Mr. Trump's case. One is and it may feel like a formality, Mrs. Clinton was not president at the time, she was not bound by the Presidential Records Act in the same way that Donald Trump was. And so you do see a difference there. With Mrs. Clinton, if I recall correctly, the real issue is whether or not her possession of the server was itself a violation of federal law. With Mr. Trump it’s whether or not the documents that he had reveals other criminal activity potentially. And so we have a slightly different legal question at work there, which the FBI could argue, creates a different standard for Mr. Trump, compared to Mrs. Clinton. And I think we have to assume to some degree, President Trump has not been very cooperative with this investigation, which led to the execution of the search warrant itself. And so it could be that his actions with DOJ investigators eventually provoked them to execute a search warrant, since he was unwilling to maybe provide or hand over information that he did indeed have. But again, you know, some of this is speculative, and hopefully, we'll know more concrete information soon.

REICHARD: And coming on the heels of the January 6 hearings, it would be understandable that the former president wouldn’t be so willing to hand over things because it feels kind of like a fishing expedition.

SMITH: Yeah, and I can, I can understand that. I mean, the President is former president is some legal vulnerability, as it relates to January 6, and if information within those documents is relevant to January 6, then you could understand why he would want to protect them. You wonder, though, to some extent, whether or not this, why this hasn't really become a legal challenge between the president, you know, there have been some ongoing litigation between Mr. Trump and the Department of Justice. And this could be a question of executive privilege, it could be a question of lots of other things. So but yeah, this is a really tense political atmosphere, the January 6 committee is part of it, Mr. Trump is part of it, we have midterm elections coming up. And it just feels like no matter what you think of the execution of the search warrant, the timing of this just ratchets up the pressure in the environment that we're looking at right now.

REICHARD: Well it really does. You know, long before this raid happened, GOP lawmakers have spoken up about political partisanship within the FBI, Biden, Clinton, and other people. If Republicans get control of one or both chambers of Congress in November, do you think then the FBI will be investigated?

SMITH: I think that the FBI probably will. And this is the real danger that you look at when when we have a former president being served with this sort of a search warrant, there's going to be a real temptation for Republicans, understandably so, to investigate this. And then maybe even in the future with a Republican administration and the White House to execute similar kinds of search warrants against former office holders who happen to be Democrats. Well, we really don't want to see is sort of a tit for tat between the two parties, where they just sort of snipe at each other, and use the law enforcement community to sort of score political points against each other. You know, that, as Republicans have rightly said, that's sort of a warning sign of a banana republic, you know, it's just not the kind of country that we want to be. And so I think there is a real chance that they will investigate, and unless the DOJ and the FBI can give good concrete answers for what they've done and why they did it, they probably do deserve the investigation.

REICHARD: As far as Donald Trump is concerned, what’ll this mean for him if it’s determined that he took classified documents home with him? From a legal and political perspective?

SMITH: From a legal perspective, we're really in a territory we're not clear with if it involves the Presidential Records Act. The Act doesn't have an enforcement mechanism. It's never been enforced in a way that would bring about potentially criminal charges. And so it's not necessarily clear what might happen. Now, there are other provisions in the federal code that do have punishments in place. And some of those punishments would even include potentially barring an officeholder from running again, or even stripping them from the office that they currently occupy. Now, that obviously could be politically explosive if it's brought to bear against Mr. Trump, but it would also cause a lot of constitutional questions, I think with whether or not that statute supersedes Article Two of the Constitution. Politically, you know, I think that this what happened probably strengthens Mr. Trump more than anything else, at least in this particular moment. There were some rumblings you even heard some Republican primary candidates and some office holders suggestion and maybe Mr. Trump should sit out 2024, maybe the party needs to move in a different direction, maybe we'd be better off focusing on the future and not sort of litigating the 2020 election. I think after what happened yesterday, if you if you paid attention to social media and other things, the Republican Party rallied around the president, and universally has called this an abuse of judicial power and an abuse of political power within the Department of Justice. And so given that, I think this has actually strengthened him. Now if we find out that there is real criminal activity, and that the DOJ and the FBI have the so-called ‘goods’ on President Trump, that maybe in the end, this will be really damaging to him. And we're beginning to see the beginning of the end of President Trump. But in the short term, I think that it emboldened him. And I think right now he's stronger than he has been for quite some time within the GOP.

REICHARD: Mark Caleb Smith from Cedarville University. Professor, thanks so much!

SMITH: Thank you.

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