The Mar-a-Lago raid: A case for criminal prosecution, or another ‘insurance policy’ against Trump?

The unprecedented raid on former President Trump’s home in Florida has set off firestorms of celebration and recrimination across the country. For Trump foes, it is the long-awaited moment of FBI agents swarming over Trump’s property in a concrete step toward criminal prosecution. For his supporters, it confirms long-standing suspicions of an FBI willing to target Trump on any grounds possible, to bar him from regaining office.

The raid will fulfill the narrative of both sides and, in many ways, advance both causes. For many Democrats, it will paint Trump as a felon-in-chief; for many Republicans, it will reinforce belief in a “deep-state” conspiracy against him.

Yet this is another moment in need of sobering reality checks on what it does and does not mean.

The most serious possible aspect of the raid did not occur on Monday night. This apparently was not a warrant executed in relation to the Jan. 6 riot or an outgrowth of an ongoing grand jury investigation in Washington that could involve charges of seditious conspiracy, obstruction of official proceedings or other serious counts.

Instead, the raid initially appears to be an outgrowth of the long tension between Trump and the National Archives over material removed at the end of his presidency that is subject to the Presidential Records Act (PRA).

I previously testified in Congress on the seizure of some boxes of material at Mar-a-Lago and the authority of the National Archives to seek intervention by the attorney general to force compliance with the PRA. The PRA is rarely subject to criminal prosecution, and past prosecutions have resulted in remarkably light punishments.

While the PRA requires the preservation of documents — and Trump’s alleged removal of records likely violated the law — it is relatively weak on enforcement elements. As shown in prior administrations, presidents have long chafed over the PRA’s limitations and required disclosures.

The 1978 law requires that memos, letters, emails and other documents related to a president’s duties be preserved for retention by the National Archives and Records Administration at an administration’s end. Prosecutions can include charges under Section 2071 which states that anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates or destroys … any record, proceeding, map, book, paper, document, or other thing, filed or deposited … in any public office” can be fined or imprisoned up to three years. An allegation of removing classified material can trigger other laws beyond the PRA that bar the removal without authorization and proper protections.

Records violations involving both presidential and non-presidential material are common, however. Those laws were raised with regard to former FBI Director James Comey removing FBI material and then leaking information to the press, yet he was not prosecuted.

In the case of President Clinton’s former national security adviser, Sandy Berger, the violations involved stuffing classified material into his pants and socks to remove them from the Archives and to retrieve them later. Berger was allowed to plead to a misdemeanor, given two years’ probation and a three-year suspension — not a permanent revocation — of his security clearance.

Former CIA director and retired four-star Army general David Petraeus was accused of giving access to classified information to his alleged lover. Although prosecutors reportedly wanted to file serious felony charges, Petraeus also was given a generous plea deal without jail time.

Thus, the targeting of Trump on a PRA case would raise questions about the necessity for such a raid, as opposed to using a subpoena or other measures. It does not mean criminal charges are inevitable, despite the euphoria expressed in many quarters.

All this brings us back to Sandy Berger’s socks — with a top official knowingly stuffing classified material in his clothing in order to remove it from a secure location, then dropping it at a spot for later retrieval.

Thus far, Trump’s reported behavior is well short of Berger’s. According to Trump’s son, Eric, Trump’s safe was forced open, only to find it empty. The question is, what documents were found and was there was prior knowledge that they were illegally withheld? Archives officials searched Mar-a-Lago in February and recovered 15 boxes of material; it is unclear whether they identified and notified Trump of other missing documents believed to remain on his property.

While there is no need to show “evil intent,” the Justice Department must show that “an act is … done voluntarily and intentionally and with the specific intent to do something the law forbids.” Whether such evidence exists here is not clear.

The Justice Department could argue that the earlier recovery of 15 boxes put Trump on notice that he had to make a complete surrender of any such documents. However, it still would need to show he had the specific intent to hide or retain such material. If he was given specific notice of material in his possession, it could show specific intent. It also would show a virtual self-destructive mania in light of the host of investigations already circling the former president. Absent an extraordinary disregarding of any notice, this search could find covered or classified material — but not necessarily find a viable criminal case.

If that is the case, there likely will be continuing questions over the use of a sensational raid to look for classified material, particularly this close to the midterm elections. The Biden administration has engaged repeatedly in heavy-handed FBI raids without any clear necessity, including searches or arrests targeting Rudy Giuliani, Roger Stone, Peter Navarro and other Trump associates; each played out on television, despite the obvious alternatives of voluntary surrenders. It remains unclear whether some of these raids even uncovered criminal evidence or will result in criminal charges.

There is a documented history of bias against Trump by top FBI officials, including prior falsification or misrepresentations used to facilitate the Russia conspiracy investigation. Thus, Attorney General Merrick Garland surely knew this raid would rekindle suspicions that this could be another example of what fired FBI official Peter Strzok once called an “insurance policy” against Trump becoming president in 2016 — only this time in 2024. For that reason, the Justice Department has an added burden to show this raid was a step toward actual criminal prosecution and not just a political indemnification.

We will soon learn if a criminal case can be brought on the fruits of this search. Absent such charges, the empty safe at Mar-a-Lago could become the most indelible and embarrassing image since Al Capone’s safe.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.