Advisory Opinions - FBI Searches Trump's Home: What Does it Mean?

Episode Date: August 9, 2022

Sarah and David get together for an emergency episode to discuss the FBI’s search of former President Donald Trump’s home at Mar-a-Lago on Monday. What does it all mean? How does a federal investigation of a senior official work, and what happens next? Plus: some possible theories and explanations that might shed some light on the events of yesterday.   Show Notes: -TMD: The FBI Raids Trump’s Home -Andy McCarthy in National Review: ​​The FBI’s Mar-a-Lago ‘Raid’: It’s about the Capitol Riot, Not the Mishandling of Classified Information -Marc Elias Twitter thread Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to a special emergency edition of Advisory Opinions Podcast. And listeners, you're blessed. You're blessed. Here's why you're blessed. So of all of the television you're going to watch, every single talking head that they get on there to talk about this will have been a less senior Department of Justice official than my co-host, Sarah Isker. So you're

going to be hearing from the most senior former Department of Justice official, unless it's, you know, an attorney general or somebody along those lines that pops on television, on our, well, I was going to say humble little podcast, Sarah, but our flagship podcast. And we're going to talk about, in this emergency edition, of course, about the search of Mar-a-Lago. And I just want to start, Sarah, let's just kind of walk through this, what we know, what we don't know, and kind of give some thoughts about what it means without getting wildly speculative. So let's just start with question number one. Why did the FBI search Mar-a-Lago? This is really the question that we don't know the answer to. So we have, according to two sources familiar with the investigation, that this relates to classified documents being held at Mar-a-Lago. But that could mean a few things.

One, it could relate to the 15 boxes that we know went from the White House to Mar-a-Lago after Donald Trump left the White House in January of 2021. But those boxes were retrieved by the FBI months ago at this point. We know then that his lawyers met with Department of Justice officials just about a month ago to talk about how those were stored. Um, it's possible at that point they learned of additional documents that were there, things like that. Um, you know, there's, it could be anything around that. What we haven't heard is that this is something having to do with January 6th, or anything that the January 6th committee has talked about, anything about the fake electors,

or any of the other January 6th-related investigations going on at the Department of Justice that we know about. But there's a problem with all of this, David, which is you generally subpoena someone for a document that you know that they have. You don't necessarily show up with 30 guys in windbreakers. And I mentioned that because what everyone's sort of assuming this is, that it's about either the retention of classified documents at Mar-a-Lago or how they were being stored, it just doesn't make a lot of sense with what

actually went down. The other problem, of course, is that the president himself is a classifying authority. I mean, he's the classifying authority. And so executing a search warrant for something he could have himself declassified is also odd. Now, worth remembering, search warrants are for places. And so it's not necessarily about him. I know that's a little hard to imagine, but that's also something we don't know. It is possible that someone else brought classified documents, for instance, to Mar-a-Lago who doesn't have classification authority, and they had to go search Mar-a-Lago for those documents. There's just not anything about that, though, that we know that there's been any other facts about, like, for instance,

meeting with the lawyers. So lots we don't know about why this happened, Davis. And everybody is essentially running with this very thinly sourced story that says it's about searching for, it's search related to classified documents or search related to documents. And maybe that's right. Maybe that's right. Maybe that is gospel truth from looking at the search warrant. But here's the important thing. We haven't seen the search warrant. And now the search warrant, it's really important for folks to know, does not tell you all the evidentiary bases for the warrant. So there's a warrant application, and the warrant application is supported by an affidavit. In other words, sworn testimony outlining what is expected to be found,

how that relates to an investigation, where they intersect with the law. The warrant itself will identify what they're looking to seize and search or seize, and it will identify the relevant statutes, but it will not tell you everything that is involved in the search. So right now we're kind of just like blind men feeling the elephant, and we just don't really know.

There's also, you know, executing a search warrant is not the first thing you do in an investigation. It's like kind of toward the end for a lot of reasons. A, you know, the Department of Justice doesn't confirm or deny investigations. And once you execute a search warrant, that's a very public step.

But even short of that, you're also letting your target know that you're investigating them, not just the public. And so if you're actually concerned about spoilation of evidence or destroying evidence or people lying and getting their stories straight, the clock starts now on all of that, which means the department's been doing something for a while that nobody knows about. Yeah. And this issue about classified information is very thorny because the president

is the classification authority. An ex-president is not. So Donald Trump right now has as much authority to declassify a document as you and I do, which is none. So, but at the same,

that's not to say that he doesn't have an ability to say that wait a minute before i came to mar-a-lago i declassified that's right it gets really messy the idea that you'd be able to prosecute him for the mishandling of classified information if the version of the story is on january 20th he packed up some boxes and on January 21st, they flew those boxes to Mar-a-Lago. And there's another factor here that's interesting that makes me really, what's that old song?

Was there a song, Things That Make You Go Hmm? Of course. Yes, okay. I'm glad I'm not misremembering, okay. C&C Music Factory, 1992? Yeah, that's like in my prime too. I mean, I should totally remember that. But among the things that make you go, hmm,

is we do have a track record in this country of taking a serious look at how very senior officials have handled classified information. Sandy Berger pled guilty to a misdemeanor. David Petraeus. Lost his law license. Lost his law license. David Petraeus, you know, commander in Iraq, commander in Afghanistan, CIA director.

He faced legal consequences. Hillary Clinton came within an eyelash of an indictment for her mishandling of classified information. And worth noting that her servers were turned over to the FBI. Right. Because I've seen people say that that's not that like, well, Hillary never had to turn over her. Yep, she did. There just wasn't a search warrant executed for them because she voluntarily turned them over. Again, I don't know why there wasn't a subpoena issued here. I'm confused about that fact. Yeah. So there's so much we don't know. But at the same time, the end result of a lot of this, Hillary was not charged.

Burger, misdemeanor. Petraeus, my gosh, what a sweetheart deal he got. Disdemeanor, Petraeus, my gosh, what a sweetheart deal he got. There's a history of taking a close look at very, very senior officials. It's not like they're immune from prosecution. But let me just say this from the standpoint of somebody who was a lowly captain in the United States Army and then major in the United States Army when I had my security clearance. Had I treated classified information the way they treated classified information, it wouldn't have gone as well for me.

So I think there is both a precedent for taking a close look at the most senior officials and also precedent for them kind of getting some special treatment here. So that's why this is a thing that makes me go, hmm, if this is about classified information. Well, let's talk a little bit about how this would work internally in DOJ.

So if it is about classified information, this is going to originate in the National Security Division at the Department of Justice. If it's not, by the way, it's going to originate almost certainly in the Public Integrity unit called PIN. But we're going to assume that this is about classified information for our conversation. But I just want to mention that public integrity unit because if you're talking about sort of a senior government official, they're sort of experts in

those investigations. And so anything other than classified information, I think it would be over with them. But if it's just misanalyzing classified information, that's what NSD is experts in, National Security Division. So you're going to have a couple federal prosecutors who are based out of NSD. They're going to have a team of FBI agents who work with them. And how this would work is they would have been investigating this for quite a while, as I said. And at some point where they felt that they both needed a search warrant and had the evidence for a search warrant, the prosecutors are going to ask those FBI agents to swear out that affidavit under oath. It's going to include details about how they know what they know,

well, what they know, how they know what they know, what type of person they heard that from, whether they saw it themselves, whether they have a confidential informant, a witness, how recently they were told that information, how reliable that witness or confidential informant has been in the past. All of that is going to be in this affidavit. Then the prosecutors are going to take that to a federal judge. That federal judge is going to decide whether that shows that there's probable cause that a crime was committed. Not necessarily who committed the crime, but that it is more likely than not, basically, that a crime was committed. Before they get to that federal judge, now they've gotten all their stuff together in the affidavit, the prosecutors are going to go

to the Assistant Attorney General for the National Security Division. That's a Senate-confirmed position. And they're going to say, here's what we got. Here's the next step we have to take if we want to move forward. And that person's going to say, oh, that's a spicy meatball. And they're going to call up the pay dag in the deputy attorney general's office. That's the principal associate deputy attorney general. It's sort of the substantive number two to the deputy attorney general. He also has a chief of staff. That person's going to deal with sort of the DAG's portfolio. The pay DAG is going to be sort of the railway conductor, if you will, what actually needs to get done by the DAG, what he can handle himself or herself. So almost certainly that AAG is going to call the pay DAG and say,

yeah, I'm going to need time on the dag's calendar. Here's what's going on. I want to fully brief you so that when you sit in that meeting, we sort of have everyone up to speed to have the dag weigh in on this. That meeting is going to consist of some counselors to the dag. He's going to have a national security counselor that works just for him, and then national security division, assistant attorney general, potentially even those specific federal prosecutors to run through the facts, the DAG is then going to say, we're going to need to brief the Attorney General on this. And a very similar process will play out with the Attorney General's kitchen cabinet. He will have a National Security Council as well that's just on his staff. He could

even at that point, David, for instance, invite the Solicitor General into that meeting to hear about how they think that mishandling of classified information would apply to a president if they took it to the Supreme Court, whether they think a circuit court would uphold that. I mean, there could be any number of people in that room at a very, very senior level, but you're certainly going to have the DAG, the pay DAG, the NSD, assistant attorney general. And the AG is going to say then, what does Chris Wray think about this? And at that point, Chris Wray might walk on over to the building. He actually doesn't walk. They even take a

motorcade across the street, David. The FBI is right across Pennsylvania Avenue and they will take a multi-car motorcade and drive it a block into the DOJ garage and come up into the circle in the courtyard in the center of the building. There's weirdly, DOJ looks like it's this huge five-sided building. Well, it's four sides, but they're not square. And there's a fifth side in the middle that makes it a square. Anyway, there's a huge courtyard in the middle that has a circular drive and place to eat lunch and a fountain. And it's beautiful. That's where the FBI director is going to drive in, get out, head on over to the fifth floor and say, Mr. Attorney General, I've been briefed all the way up by my FBI agents, their supervisor up to the deputy FBI director.

And I think this is, I think they've got it. I think they've got probable cause and we should move forward. This is the only next step in the investigation and we must take that. And the AG is gonna look at everyone in the room, ask them what they think and give the sign off. Now, interestingly, David,

I do not think that they will tell the White House. And why? A couple reasons. One, the Department of Justice since Watergate has just maintained this sort of independence when it comes to criminal investigative steps to not have the White House weigh in on anything like that. Two, the White House doesn't want to weigh in on this. They don't want this to be their decision. You're doing them a favor by not telling them and letting them say they didn't know about it in advance. Now, publicly, the White House has said they learned about it from Twitter. That is weird because generally how that worked in my time is, and I'm thinking here of the Michael

Cohen search warrant that was executed on the president's lawyer. Two Republican congressmen were indicted. You call the White House counsel as the search warrant is being executed and say. Yo, search warrant in process. That's right. You say this is the attorney general of the United States and I'm calling so that you can let the president know that there is currently a search warrant being executed on former President Trump's residence in Mar-a-Lago. We will not be making public comment. Thank you. And you hang up the phone. Right. I think it's really weird not to even give

them a heads up just from like a news standpoint, like give them some ability to respond to this. And so, right, so then they're going to go to the judge. They're going to get that sign off. The reason you send 30 guys, by the way, in windbreakers is chain of custody. You've got to write every single piece of this down, what you find, where you find it, who touched it. And so that just takes a lot of people.

The 30 guys going down there is not particularly meaningful to me because it's a large place. So let's talk a little bit about the identity. So we know who Merrick Garland is. Former D.C. Circuit Court of Appeals judge. Was nominated for the Supreme Court. Nomination blocked prior to Trump's presidency.

Nominated as Attorney General. Confirmed by the Senate. Christopher Wray, FBI Director. Now, this is a little bit about his bio. He's a George W. Bush appointee, Yale Law School grad. Also, he was appointed by Donald Trump, confirmed by Republican-controlled Senate. Also, Sarah, he is, just to show you that there is no six degrees of advisory opinions. There is only one degree of advisory opinions. He is a litigator. He clerked for Judge Ludig. Nice. Member of the Federalist Society. So this is Trump's selection for FBI director here. And immediate, you know, there were all these immediate calls to defund the FBI.

We saw all over the place on Twitter. Now, look, here's where I am on this, Sarah, on the FBI's role in this. The FBI has done some very good things and it has done some very bad things. The fact that it has done some very good things does not mean that I should presume that everything is done properly and competently here. And the fact that it has done very bad things does not mean that I should presume that it has done stuff improperly and incompetently here. But it is worth noting that this is not a combination of two Democratic appointees at the FBI and the DOJ. This is a Trump appointee at the FBI and a Biden appointee at the DOJ. I think those biographical details are at least worth something.

Yes. However, I do think it's worth talking about some of the mistakes that were made during the Crossfire Hurricane investigation. The Inspector General of the Department of Justice put out a nice long report. I read the whole thing. Look, there were a lot of quarters cut

in those FISA applications. That was what the IG report was most focused on. But also don't forget, you had an attorney at the Department of Justice fabricating a piece of evidence. He had an email. He doctored the email to make it look worse and more relevant than it was and use that as the basis for gathering more evidence in the Spiza

application. That's really, really bad. Yep. And so I mentioned that not, again, because then we should presume bad faith or good faith or mistakes or anything else for this, but that to the extent that people don't trust the FBI right now, some of that at least is at the FBI's feet. They made mistakes. And then you have Jim Comey. He made mistakes. Now, I think people disagree on what those mistakes were, so let me tell you what I think Jim Comey. He made mistakes. Now, I think people disagree on what those mistakes were,

so let me tell you what I think Jim Comey's mistake was. He violated DOJ protocol by announcing the Hillary Clinton investigation and steps and thoughts and feelings that he had about it outside of the DOJ chain of command. Let me run through chain of command real quick. The attorney general is at the top. The deputy attorney general reports to the attorney general. He is the only person who reports directly to the AG. The FBI director reports to the deputy. So there's like multiple people in that chain. Jim Comey didn't tell the attorney general, who was Loretta Lynch at that point, because he thought she was compromised by that tarmac meeting with Bill Clinton. That's not his call to make as far as I'm concerned. But even if he believed that,

he didn't tell the deputy attorney general. And by tell, I mean, by the way, ask permission. Because again, this is chain of command. This isn't just notification. He said that he thought they were all partisan Democrats and they were going to taint the reputation of the department. So instead, he just decided to cowboy it up and do that press conference on his own. And that led to then this series of cascading events wherein he had to update what was next when they found new evidence right before the election. And it was like one thing after another. And then he goes before Congress in April, early May, and says he would do it again. That undermines trust in the FBI as well.

And the reason, by the way, DOJ doesn't confirm or deny investigations, I get it. Everyone has feelings about Hillary Clinton and Donald Trump and thinks that we should just be full Komodo on whatever people are finding or thinking or feeling about them. But imagine that we're investigating David French. We just go out there and say, hey, we think there's some chance. We got like a tip that David might have done this thing. So we're going to look into it.

That would so immediately affect your life, David. Yes. You would, everything would change. And then they may find nothing. So then do they need to announce that they've closed the investigation, that they didn't find anything? What if they found some stuff, but it wasn't enough, they thought, to go to trial and win? Do they need to say, look, we still think David broke the law, but it's kind of a close call and we decided we don't have the resources to pursue it right now. What? So you never get your day in court. You just get the shade from DOJ. So that's why these things aren't announced

publicly. And it's why the DOJ isn't doing anything right now to inform the public on why they executed a search warrant in Mar-a-Lago. I hope they don't. Yes. So the problems with the FBI are the reason why you don't, like, there's competing Twitter threads going around out there, Sarah. This might come as. Yes, there are. Yeah. So here's Twitter thread number one. There's no way the FBI wouldn't dot all the I's and cross all the T's before doing something this important.

Yes. Come on. I mean, come on with that. It's like the last, like, five years didn't happen. Right. Just never happened. Right. Exactly.

It blows my mind to see that Twitter thread. Yeah. Just come on. It's reminding me of the, well, what do you have to fear from all these thousands of new IRS agents that might be hired? I'm like, I'm raising my hand. Did you know that in 2011, I was audited simply for adopting a child? That we went through a nightmarish audit for simply adopting a child. And by the way, 68% of families who adopted a child in 2010 were audited in 2011. That's stunning. So no, you don't presume that the government has dotted its I's and crossed its T's. You never, never presume that. And even if the FBI's record had been incredibly sterling over the last five or six years,

you still don't presume it, okay? That's why we have an adversarial system. It is do not presume. But at the same time, I'm seeing all these threads that say- And by the way, these are the same people who presume that when there's a police-involved shooting, that the police are certainly wrong. Like the good, both sides are going to be hypocrites here in terms of when we just trust the police and when we just don't trust law enforcement.

Defund the police? No, horrible. Defund the FBI? Yes, good. I mean, come on. So anyway, then on the other side, this idea that because the FBI, there were problems with the FBI's investigation into both Hillary Clinton and Donald Trump, that therefore, therefore the FBI is presumptively corrupt here, is also quite flawed. That's why I've been saying since last night,

everybody wait, everybody wait. Everybody wait. We don't have to have a definitive opinion on the FBI's actions here because all of those people are saying, you know, Mueller and the whole investigation was just shot through with total corruption. I mean, my goodness. Do you not remember things like George Papadopoulos? Guilty plea. Rick Gates. Guilty plea. Paul Manaopoulos guilty plea Rick Gates guilty plea

Paul Manafort guilty plea found guilty Michael Flynn guilty plea Richard Panetto guilty plea Alex Vanderzwan guilty plea I mean there was a lot of corruption that was uncovered and for which people pled guilty to at scale so this idea that everything has been shot through with corruption is also just wrong. So we have to wait. We have to wait and see. lengthy piece that people are passing around quite a bit right now. And I'm a little skeptical of it, although, you know, gosh, Andy has a lot of experience and expertise. And I'll tell you his thesis, and I'll tell you why I'm skeptical, and I want to know what you think. Okay. So his thesis is that the search for the classified information is a pretext for a search for information related to January 6th. And the analogy that he used was, if you know, I'll just read it. There's a game prosecutors play. Let's suppose I suspect X committed armed robbery, but I know X is dealing drugs.

So I write a search warrant application laying out my overwhelming probable cause that X has been selling small amounts of cocaine from his apartment. I don't say a word in the warrant about robbery, but I don't have to. If the court grants me the warrant for the comparatively minor crime of cocaine distribution, the agents are authorized to search the whole apartment. If they find robbery tools, a mask, and a gun, the law allows them to seize those items. As long as the agents are conducting a legitimate search, they are authorized to seize any obviously incriminating evidence they come across. Even though the warrant was ostensibly about drug offenses,

the prosecutors can use the evidence seized to charge armed robbery. He says he believes that principle is key to understanding the FBI's search of the president's estate. Okay, it makes some facial sense, but here's what makes me skeptical about it. Isn't that a really big risk to say, okay, well, we know we've got the president on something that is sort of Sandy Berger, David Petraeus-esque, maybe Hillary Clinton-esque on classified information. But as we're going through the documents, we might see a whole binder that says fake electors master plan. And we can grab that as well.

To me, that would be evidence that the FBI is doing this wrong, if that thesis is correct. What do you think? Yeah, I have a few thoughts. First of all, Andy McCarthy is certainly on the side of the majority of former federal prosecutors when he says that the classified information explanation doesn't quite add up. And let me give you another more specific example. So remember I mentioned that after they picked up the 15 boxes from Mar-a-Lago that we know contain presidential records, there's then this meeting. Investigators made a rare visit to Mar-a-Lago seeking more info about material taken from the White House. The four officials, including Jay Brett,

chief of counterintelligence and export control at DOJ, met two of Trump's attorneys. Trump stopped by briefly. Well, that doesn't really make any sense because at least at that point in June, they clearly don't think that evidence is being destroyed. So whatever they have there is not going to then be enough for a search warrant because Trump's attorneys are cooperating. Clearly they have no fear that evidence is being destroyed. So something then has to happen. They have to have new evidence to put into that affidavit

between June and yesterday in order to get the search warrant. So what could that be? And that's where I think a lot of former prosecutors are like, so something doesn't quite make sense here. But I'm not sure that Andy McCarthy's explanation makes a lot of sense to me either. He's right when you're talking about drugs and armed robbery. This is pretty different.

And it's not like we saw then, for hours, FBI agents rolling out boxes of computers and servers and documents. That's what you'd expect in a Dragnet search warrant. This doesn't seem to have been that either. And frankly, I know 30 agents sounds like a lot. It's not that many. So again, not a lot of evidence for that Dragnet search warrant idea. So on the one hand, I agree with him that the classified information explanation doesn't quite work from a gut check standpoint and certainly not from the evidence that we have so far,

but his Dragnet explanation doesn't quite work for me either. Which, this gets back to your point, David, of like everyone assuming good faith or bad faith on DOJ's part. Like, well, they wouldn't execute a search warrant on a former president's residence just to go pick up two pieces of classified documents. I don't know. I agree. I think it's a little un classified documents. I don't know. I agree. I think it's a little unwise, but I don't know.

Maybe they did. Maybe. Maybe. And here's the other thing hovering around out there. The search warrant is in Donald Trump's hands and his team's hands. They can put it out there if they want to. They can disclose it. Absolutely.

Yeah, so that's also been, it's both frustrating and weird. Donald Trump's attorney would have been handed a copy of exactly what you said, David, not the affidavit, but that cover page, which would have included almost certainly statutory citations of the crimes they think could, that evidence would show were committed and what they're allowed to search for. Yeah. And we haven't seen that. And it doesn't make any sense. Yeah.

Now, what about the FBI release, or the DOJ releasing it? Now, this is something that people are calling for the DOJ to release. No. No. No. You don't. I think I've said this before on at least one of the two podcasts that we're going to air this on, but I just learned this really valuable lesson from Rod Rosenstein that the times where you think you need to make an exception because this is so unusual, it's so

unique are exactly the times where the protocol is there to help you. DOJ does not comment on ongoing investigations. They do not confirm or deny the existence of ongoing investigations, even when you, the public, clearly know. Like a search warrant's been executed. Like a grand juror tells you that they are part of a grand jury and this is who just came to speak to us. Any of that doesn't matter. You, the Department of Justice, still do not confirm or deny the existence of the investigation. They're not going to say anything.

Yeah. Struggled to find that word. But Trump has it. He could upload it to Truth Social this moment. he could upload it to Truth Social this moment. His team could, with his authorization, his team, the members of his team who have Twitter access could upload it to Twitter this moment.

I think he should. I think he should. I think it's worth talking about the Mark Elias theory since we talked about Andy McCarthy's theory. Oh yeah, we have to talk about that, yeah. So Mark Elias is a Democratic lawyer. How do I, he's very, very partisan, David, and I think it clouds, it certainly clouds his Twitter legal judgment, but I gotta tell you, it's clouded some of his courtroom legal judgment that we saw during the run-up to the 2020 election,

saw during the run up to the 2020 election that just the Democrats honestly should do better. But anyway, he tweets, the media is missing the really, really big reason why the raid today is a potential blockbuster in American politics. And he cites 18 U.S.C. 2071 concealment removal or mutilation. In part B, it talks about what the punishment will be, you know, fine, jail, and shall forfeit his office and be disqualified from holding any office under the United States. Now, plenty of lawyers tweeted at Mark Elias and were like, stop this.

You're wrong. You should know you're wrong. So Mark Elias then adds another tweet. Yes, I recognize the legal challenge that application of this law to a president would garner since qualifications are set in the constitution. But the idea that a candidate would have to litigate this during a campaign, in my view, is a, quote, blockbuster in American politics. Okay, so you're saying it doesn't apply whatsoever, but the fact that it could apply, okay. That's bad law Twitter, and I don't

appreciate it, Mark Elias. But David, the reason, of course, that he hints at here, the qualifications for the presidency of the United States are listed in the Constitution, Congress can no more set a statutory new qualification that the president can't have mishandled classified information than they can say that the president has to have red hair. The blockbuster would not be the provision of the statute that says, shall forfeit his office and be disqualified from holding any office under the United States because that provision loses. Okay. Yeah. No, the blockbuster is he's effing indicted.

The blockbuster is effing indicted and could be in prison. Okay. Yes, for three years. That is the blockbuster here. So you could have a Donald Trump announced for president, be indicted and convicted, and what, run for president from federal prison? I mean, that's your blockbuster. I think all that's unlikely, possible, unlikely. But yeah, that's your blockbuster here. It is not a absolutely unconstitutional provision as applied

to the president of the United States. But David, this raises another question. If Mar-a-Lago has, again, two random pieces of paper that classified or stamped on, and the head of counterintelligence went down there and was like, we need those pieces of paper back. And Trump's lawyers were like, no, go pound sand. And they're like, no, you go pound sand. And they felt like they were just pressed against the wall, and they either had to let it go or get a search warrant, I guess I'll be honest, I'm not totally sure why they wouldn't wait until November 10th, 2024. Yeah, it's a good question. It's a good question. Unless you actually think those specific pieces of paper would cause great national security harm

to the United States, but I kind of doubt they would considering we know that one of the things in the 15 boxes was the map of the hurricane showing it hitting Alabama that proved the president right. These were things he wanted for his presidential library. So why turn up the temperature so hot so fast now? And that's where, again, you get back to the, like, so it doesn't make sense that it's over two pieces of classified, you know, pieces of paper.

There's a lot here that we're running with in the public commentary that I'm like, whoa, hold on. Do you really take the step? Because Merrick Garland has not been characterized by sort of overtly aggressive prosecutorial steps since he's become attorney general. And to escalate all the way here, now, again, like I said, we have enough FBI misconduct in the past to not presume competence. And we have enough FBI success in the past to not presume competence and we have enough fbi success in the past to not presume incompetence or corruption we have to wait and see but the public reporting is again to go back to cnc music

factory is a thing that makes you go hmm so now david let me okay let me now forget everything we've just said i want you to assume my premise is 100% accurate. Okay. There are two pieces of classified information. The FBI knows they're down there. The lawyers told them that in June, said they weren't going to give them back and that they were in Trump's safe, so they were perfectly fine.

And they kept negotiating. They reached a stalemate, and Trump would not give the documents back to the federal government. What should they have done? Should they have gone down, opened the safe, gotten the documents, and left? They need a search warrant to do that. Should they have let Trump win that? You know, play chicken and back down?

What if it actually is as simple as that? Then, do you think the FBI, the Department of Justice, the Attorney General did the right thing because nobody's above the law and the same way they would have treated you, Captain, um, they should treat the former president? Or are they kicking a hornet's nest? People don't trust the FBI right now and further inserting the FBI into a politically miserable situation simply undermines our institutions more. So in classified information, there's this concept called spillage. And spillage is what occurs when classified information spills out of its

secure domain. And so typically what happens in a spillage situation is the spiller has a lot of incentive to cooperate, unless there's someone actually engaged in espionage or whatever, has a lot of incentive to cooperate in containing the spread of the information. So somebody like a Captain French who was investigated for spillage, if I find out I have classified information on my hard drive, 999 times out of 1,000, what I'm doing is I'm handing over the hard drive. I am providing access for the government to search wherever else it went. And if Captain French, however, has, there is spillage and Captain French has classified information and the FBI says, give it back. So let's say it's two pieces of paper. And I say, no.

What happens to me is they come in and they take the two pieces of paper and they take me. Okay. I walk out with handcuffs. Now, the situation, as we've described with some of these other individuals, so far as I know, Petraeus cooperated. So far as I know, Hillary Clinton cooperated. So if you have a situation where President Trump says he has pieces unsecured, top secret information, let's say it's top secret information or above top secret information, and he's not cooperating. He's saying mine. And he's not saying I declassified before I left.

You know, I think there are a lot of steps short of this that you could take. Mr. President, could take. Mr. President, can we provide you with a secure, with our own safe and 24-hour guard? There's a lot of things that you can do. He has Secret Service Protection. He has Secret Service Protection. I actually would assume, I've said this before, but I assume there is a SCIF at Mar-a-Lago because there would have been during his presidency. Sorry, a SCIF, a secure compartmentalized information. What's the F? It would actually shock me if there was no way to secure classified information at Mar-a-Lago right now.

That would be actually shocking to me. So it feels to me like there are a lot more ways with a former president that you can deal with classified information spillage than with Captain French. Captain French. Captain French wouldn't have a skiff in his house. You know, the frog marching me out of my house doesn't start the word civil war trending on Twitter. So I think there's just a lot you can do

if literally what you're talking about is there are two pieces of paper he doesn't want to give up. And that's the scenario where I think, huh, I'm not sure this was really very wise, if that's what it boils down to. I don't know. Where are you on that, Sarah? Yeah, pretty much the same. And I think that's exactly, I mean, we'll see. But I think there's a chance that's exactly where I'm going to shake out on all of this. I don't want the president to be above the law, but also there's wisdom versus letter of the law. And I hope that there's a lot

of wisdom in that building right now, but I'm not there. And as you said, I think that's where having Chris Wray and Merrick Garland is kind of a two-key system for the nuclear codes on this. You know, Chris Wray is a very, very smart, experienced, serious, thoughtful person. Yeah, and a Trump appointee. And I will say, though, that the one thing that the two keys don't give you is that Chris Wray and Merrick Garland

are not political people. And that's a good thing in a lot of ways when it comes to criminal investigations, but it also makes them politically naive on the political consequences of some of the things

for the department. Which, again, that's actually how you want people making the decisions. You don't want them constantly thinking about the political ramifications, but it does mean that you have these two people who like neither one of which is going to say, huh, well, this is going to have civil war trending on Twitter. Like that's not going to enter their minds. Yeah, exactly. Exactly. Because that's the thing is, I am firmly of the belief that no president is above the law. As I wrote earlier today,

that no president is above the law. I'm like, that doesn't, what? David, where are you? I know, no president is above the law. So I'm very firmly of that belief. I'm also very firmly of the belief that if you're going to indict a president, if you're going to even execute a search warrant

against a president, you gotta have a lot of slam dunk evidence there because there is an enormous danger. One of the things that preserves our republic is a consensus view that this is a rule of law governed law enforcement and political system. And so politicization of law enforcement as a weapon to wield against political enemies, as people rightly point out, is, you know, quote, banana

republic stuff. So there has to be, and I've said this a million times when I've been asked about this, you're going to talk about indicting or searching a president. You're not, you shouldn't have a stretch legal theory. You shouldn't have a novel legal theory. It shouldn't be penny ante stuff. It has to be it has to be a b c d clear as day and then that is why he should be searched or that is why he shouldn't be indicted or that is why he should be convicted it needs to be very very clear easy for people to understand and not something where it's like let me explain why this indictment is so compelling, thread one out of 72. It has to be something that is, this is a very simple way of explaining what he did. Here is the evidence. It's very simple to understand. Otherwise, it's going to be lost in the abyss

of hyper-partisan politics. And I don't think we're going to have a civil war, but the frenzy I saw online tells me it's not out of the question that some disturbed individual somewhere won't pick up a gun and try to do something about whatever they see happening. And that is very sobering to me. I think that is where we'll leave it.

On that grim note. Sarah, we got to stop having these emergency pods. Why? They're fun. Well, they're always occasioned by such seismic national events. It's necessary. Like you can't have an emergency pod without the seismic event. The one goes without the other.

Otherwise, it's just a frivolous extra pod. That's right. Well, thanks as always for listening. And as always, please rate, subscribe, and check us out at thedispatch.com. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's

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