The Dispatch Podcast - FBI Raids Mar-a-Lago: What Does it Mean?

Episode Date: August 9, 2022

Sarah and David get together for this special Advisory Opinions crossover 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

Welcome to the Dispatch podcast. I'm your host, Sarah Isgar, and we have a special crossover episode this week with advisory opinions. I've invited David French, and we're going to talk about the FBI executing a search warrant on the former president's home at Mar-a-Lago, what it means, how it works, and what could happen next. Let's dive right in. 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.

Right. 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 can 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. It's possible at that point they learned of additional documents that were there, things like that. 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 Mara 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, 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 intersects with the law. The warrant itself will identify what they're looking to seize and search or sees, 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, like the clock, 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 Mara Lago, I declassified.

That's right. It gets really messy the idea that you would 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 Mara 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. Yeah, it's okay. I'm glad I'm not misremembering, okay. CNC 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 hers or yep she did there just

wasn't a search warrant executed for them because she voluntarily turned them over again we 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 um Hillary was um not charged burger misdemeanor Petraeus my gosh what a sweetheart deal he cut. 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's a, there's a, there's a, 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 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 mishandling of 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, and 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. Yeah. 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 meaning, 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 ADD, Assistant Attorney General. And the AG is going to say, then, what does Chris Ray think about this? And at that point, Chris Ray 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 the 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 placed 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 going to 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. 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 to 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 sent 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 Merritt 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 Ray, 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-degree. of advisory opinions. There's only one degree of advisory opinions. He is a ludicator. 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 FISA 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'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, 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, you know, 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 kimono 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 of the

FBI are the reason why you don't like there's 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 eyes 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 eyes and crossed its tees. 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, you know, a police involved shooting, that the police are certainly wrong.

Like the good faith, 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. 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 Manafort, guilty plea, found guilty. Michael Flynn, guilty plea. Richard Panetto, guilty plea. Alex Vanderswain, 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. We have to wait and see. All right, here's my question, Sarah. My friend Annie McCarthy had a 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 its 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 contained presidential records, there's then this meeting. Investigators made a rare visit to Mar-a-Lago seeking more information. 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 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 the hands, is in Donald Trump's hands in 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. And we haven't seen that. And it doesn't make any sense. Yeah. Now, what about the FBI release? This is not, 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. Struggle to find that word.

But Trump has it. 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. Not long ago, I saw someone go through a sudden loss and it was a stark reminder of how quickly life can change and why protecting the people you love is so important. Knowing you could take steps to help protect your loved ones and give them that extra. layer of security brings real peace of mind. The truth is the consequences of not having life insurance can be serious. That kind of financial strain on top of everything else is why life insurance indeed matters. Ethos is an online platform that makes getting life insurance fast and easy to protect your family's future in minutes, not months. Ethos keeps it simple. It's 100% online, no medical exam, just a few health questions. You can get a quote in as little as 10 minutes, same-day coverage and policies starting at about two bucks a day, build monthly, with

options up to $3 million in coverage. With a 4.8 out of five-star rating on trust pilot and thousands of families already applying through Ethos, it builds trust. Protect your family with life insurance from Ethos. Get your free quote at ethos.com slash dispatch. That's ethyos.com slash dispatch. Application times may vary. Rates may vary. I think it's worth talking about the Mark Elias theory since we talked about Andy McCarkey'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 got to tell you, it's clouded

some of his courtroom legal judgment that we saw during the 20, 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. 271 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 whole 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, then they can say that the president has to have.

red hair. The blockbuster would not be the provision of the, the provision of the statute that says shall forfeit his office and be too qualified from holding any office center of the United States, because that provision loses. Okay. Yeah. No, the blockbuster is he's effing indicted. Yeah, blockbuster he's 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, for? 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 in the United States. So, 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, it was like, we need those pieces of paper back. And Trump's lawyers are 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 do... 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. And 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 incompetence or corruption. We have to wait and see. But the public reporting is, again, to go back to C&C 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 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

in the same way they would have treated you, Captain, 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, 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 Quartz, 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 step short of this that you could take. Mr. President, can we provide you with a secure, with our own safe and 24-hour guard? Mr. You know, 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 skiff at Marilago because there would have been during his presidency. Sorry, a skiff, secure compartmentalized information. What's the F?

It would actually shock me if there was no way to secure classified information at Marlago 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 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 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 Ray and Merrick Garland is kind of a two-key system for the nuclear codes on this. You know, Chris Ray 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 Ray 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 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 the president, is above the law. As I wrote earlier today, that no president is above the law. Yeah. I'm like, that doesn't, what?

David, where are you? I know, no, 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've got to 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 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 hyperpartisan politics. And I don't think we're going to have a civil war, but the frenzy, 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. David, thank you for this very extra special dispatch pod, which is also going to serve as an emergency pod for advisory opinion. So if you liked this pod and you want more legalness stuff, come on over to the flagship podcast advisory opinions with Sarah Isgird, David French, where we do this kind of thing on the regular. But thank you for joining us here on the dispatch channel, and we will see again real soon.

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