Cutting through the search warrant noise

I have spent considerable time this afternoon sorting through the contents of the warrant, reading the statutes, and gauging the various reactions to it.

We can get rid of a couple of talking points right away. 

First, from a legal standpoint it does not matter whether the materials seized were classified or not. It also does not matter whether Trump did (or could) declassify these documents on his own volition. Those arguments are smokescreens. The statutes underling the warrant, especially those dealing with espionage, make no distinction between classified and unclassified materials. The only question is whether Trump was, as a matter of law, entitled to retain these documents and materials.

Second, as Attorney General Garland pointed out, search warrants are not issued lightly, particularly at this level. The record shows that the materials seized this week had previously been subpoenaed. It was Trump’s failure to produce them under the terms of the subpoena that made the search warrant the only available remedy to get them. 

Moving on. It is the job of lawyers to cut through the noise (and there’s plenty of it here). While most people are talking about what was seized, the most critical piece of the puzzle is the criminal statutes listed in the probable cause affidavit that led to the warrant being issued. 

In order for the judge to grant the search warrant, he needed to find probable cause for EACH of the statute violations that would constitute a crime. Therefore, if the judge decided that the only violated statute was retaining government records, he would have rejected the part of the warrant pertaining to other crimes, including espionage.

Do you see why this is important? It means that the judge found probable cause that there was a violation of the espionage statute. THIS is what people should be talking about. 

Further, because espionage necessarily involves more than one person, the seized materials may be used to charge additional individuals with numerous felonies, including treason. 

If indictments eventually come down for a number of people, the serious finger pointing will start and plea deals for cooperation will begin.  Typically, the smaller fish rat out the larger ones and we know who the largest fish is. 

Some are suggesting that the issuance of the search warrant smacks of political vindictiveness. However, both the FBI Director and judge were appointed by Trump. They had every excuse to not act. However, probable cause of espionage simply could not be ignored.