Raid on Trump’s Mar-a-Lago estate questioned by some lawyers
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Legal experts are questioning whether the FBI’s raid on former President Donald Trump’s Florida home for classified White House documents was necessary.
Some experts told Fox News Digital that the basis for the raid, which centers on Trump’s alleged failure to turn over potentially classified documents to the National Archives, is unprecedented.
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“Based on what we know now, it was totally unjustified, even one FBI agent would have been too much,” said Alan Dershowitz, a Harvard Law School professor who served on Trump’s legal team for in the first case of impeachment of the president. “The whole process was wrong and Trump was out at the time, so they can’t say he was going to destroy anything.”
Legal experts point out that when individuals have previously violated the classified documents law, the Justice Department has opted not to prosecute or settled for lesser charges.
“The Presidential Records Act is not usually the subject of criminal prosecution, even in the most egregious cases,” said Johnathan Turley, a professor at the George Washington University School of Law. “These incidents have generally been handled administratively.”
In 2004, for example, the DOJ prosecuted former Clinton-era National Security Adviser Sandy Berger for the unauthorized removal and destruction of classified material from the National Archives. The former NSA adviser pulled from the National Archives five copies of a report detailing the Clinton administration’s handling of a series of failed terrorist attacks planned by Al Qaeda for the millennium 2000.
Berger, who made copies of the report by tucking them into his pants and socks, was sentenced to just two years of probation and stripped of his security clearance for three years.
“These cases generally have not been the subject of aggressive criminal prosecutions in the past,” Turley said.
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A large group of FBI agents raided Trump’s Mar-a-Lago estate on Monday with search warrants. The attack was reportedly linked to materials the former president brought to the residence after leaving the White House in January 2021.
The Presidential Records Act of 1978 and other federal laws prohibit the removal of classified documents from unauthorized locations. For months, the National Archives has been trying to obtain documents related to Trump’s tenure at the White House at Mar-a-Lago.
In February, Trump turned over 15 boxes of documents from the estate, including official correspondence between Trump and foreign heads of state, to the records-keeping agency.
“After working and cooperating with the relevant government agencies, this unannounced attack on my home was neither necessary nor appropriate,” the former president said in a statement. Trump’s representatives had informed the archives that they continue to seek additional presidential records belonging to the National Archives.
Some experts question the need for the raid if Trump, as claimed, was cooperating with the National Archives. They point out that the National Archives should have referred the matter to the Department of Justice.
“To obtain a warrant, prosecutors would have to have probable cause to believe that a crime has been committed and that the search would yield evidence or the fruits of the crime at the search location,” said Robert Leider, an assistant professor at the ‘Antonin. Scalia Law School of George Mason University.
Given Trump’s status as a former head of state, Attorney General Merrick Garland would likely have to approve the search warrant. The warrant would have to specify what crimes they believed Trump had committed.
Critics say the Justice Department needs to be transparent about the rationale for the raid.
“This is a historic raid on the residence of a former president and a presumptive candidate for the upcoming presidential election,” Turley said. “The public needs to know the reasons for the Justice Department’s decision.
Others also criticized the way the attack was handled. Dershowitz, in particular, noted that FBI agents likely seized documents without asking whether they were classified, declassified or personal to Trump.
“The Justice Department had no right to indiscriminately seize them because some may be unclassified and some may be classified above their level,” he said. “There are things that the president has declassified that the Justice Department doesn’t know about.”
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Since Trump has turned over documents to the National Archives in the past, experts say the federal government should have simply subpoenaed the records as needed. Instead, they claim that the Justice Department has now created a situation where anything it seizes from the FBI will have to be reviewed by both parties to ensure that Trump’s privacy is not invaded.
“Trump’s lawyers should already be in court demanding that no one in the government look at any of the boxes until they have a chance to challenge the motive for the attack,” Dershowitz said.