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Donald Trump’s Evidence Woes

Donald Trump’s Evidence Woes

Over the past few weeks, the conversations on former President Trump’s legal issues and investigations have been centered around evidence newly obtained evidence: specifically, the Secret Service deleted texts and the recent Mar-a-Lago raid by the FBI.  For a guy who rose to prominence through reality television, between the January 6th Committee, the FBI raiding his home, and explosive revelations about the Secret Service, it feels like an extended Sweeps Week of mounting potential consequences for the former President.

Mar-a-Lago Raid

The most significant news to break in the investigations into Donald Trump, criminal or otherwise, was likely the raid on his Mar-a-Lago estate to obtain documents the Department of Justice believes were wrongfully taken from the White House.  This brings with it some deep implications.

For starters, warrants are not automatically given: it must be demonstrated to a judge or neutral, detached magistrate that law enforcement has probable cause to believe that criminal activity is occurring in the place to be searched, or that evidence of a crime can be found there.  This implies that a judge is convinced that Donald Trump has in fact committed a crime, and that evidence of this crime would be found in the place to be searched described in the warrant.

This is always a balancing test between the public’s interest in having individuals retain their privacy and its interest in the functioning of law enforcement. 

Additionally, the DOJ has alluded to already attempting to use less intrusive methods.  This seems to imply that former President Trump, contrary to his claims, has not been cooperating with authorities in their investigation and they consequently had to break into his safe to get the documents they were legally entitled to.

An added layer to this balancing is the strong taboo that American politics has against prosecuting former presidents, especially when the prosecution would be conducted by the other political party.  Any guessing as to the future of the investigation or criminal charges would be pure speculation, but it bears mentioning that this was the first time a warrant had ever been executed against a former President – this would be uncharted territory, but we’re already there with the warrant.

The warrant and property receipt (for the property taken pursuant to the warrant) has been released, showing a Department of Justice that acted at the highest levels and crossed every t and dotted every I in anticipation that this may be the most thoroughly scrutinized warrant ever issued.  This disclosure was called for by Merrick Garland and agreed to by former President Trump, whose attorneys did not oppose the motion the DOJ filed to do so in court.

Reception of the news was fairly predictable, with the biggest variable demonstrated was who in the wake of the January 6th Committee Hearings is still willing to spend political capital to speak in favor of former President Trump.  With Midterm Primaries coming up soon likely believe it is the safer option than having the former President turn on you a few months before primaries.

Donald Trump has attempted to claim that he declassified the documents.  It is true that a President can do this, however, it must first go through a legal process, which the President did not do and cannot do retroactively.

Image Credits: Getty Images/Mandel Ngan

Secret Service Texts

Since Cassidy Hutchinson’s testimony, a dark cloud has settled over the Secret Service, an oft-overlooked institution that has been all but reflexively trusted by Americans as the President’s bodyguard.

Hutchinson indicated that Trump had to be physically restrained from going to the Capitol building and encouraging, if not taking control of, the insurrection that he fired up with what has become known as the “Fight Like Hell” speech which inspired many in the crowd.

This is of course only one of many allegations pertaining to the former President’s actions on that day, such as Trump pushing the Secret Service to remove former Vice President Pence from the Capitol Building to prevent the certification of the election (which, to Pence’s immense credit, he flatly refused to do).  Despite the presidential lunge at Secret Service agents being tabloidy, this is an important detail: did the former President need to be restrained after doing everything he could to get to the mob at the Capitol Building, and had he not been, what would he have done?  This is exactly where those deleted texts may offer context.

Looking to the texts that are claimed to be lost by the Secret Service, it simply beggars belief that communications, personal or professional, of the people closest to the President and Vice President on the day where their perspectives would have the deepest implications, would simply vanish during a data transfer.  This was despite the Secret Service having enough time to back up the data before the transfer in any number of several potential ways.

The Secret Service is one of the most technologically sophisticated security agencies in a country that spends more than any other on the security industry.  Between the threats to former Vice President Mike Pence and his security detail, close view of Donald Trump during Jan. 6th, and additional other details that we may currently have no information on, the honest impressions of agents on that day maybe some of the most important evidence in determining what happened.  To so incompetently handle a basic data function to a catastrophic degree at the cost of vital information in our nation’s most high-profile controversy, in Adam Kinzinger’s words, does not pass the laugh test.

If anything, leadership in the Secret Service should have immediately moved to preserve the record of everything that happened that day as contemporaneous impressions that could help give a complete impression of the day and perhaps even hold up in court.  

Because of the significance of the evidence lost and the insufficiency of the Secret Service’s response, the Department of Homeland Security (DHS) has instructed the Secret Service to cease its own investigation and allow DHS to perform an investigation into the loss of the texts. 

Why It’s Relevant

The January 6th Committee, set to resume hearings in September, is still shaking loose every witness it can.  For those who fear criminal prosecution, as pressure builds, they may see the variables in their self-interest calculations shift and come forward to give evidence.  This has already been taking place as the Jan. 6th roster of witnesses has grown in response to testimony.  What may motivate who is hard to predict, but high-profile investigations and leaks could chip away at resolve and motivate hesitant witnesses to come forward.  With these hearings a matter of public record, they can inform civil and criminal prosecutions of the former President, building prosecutorial momentum and feeding arguments against his potential candidacy.

Perhaps the most drastic effect would be hastening Donald Trump’s timeline in declaring his candidacy.  As a strategic move, the closer he comes to the Presidency and the more political the prosecution appears, the better his chances. Trump now is cornered with little or nothing to lose for running again, knowing that the prosecution of a sitting President would be impossible. 

With the next January 6th Committee scheduled in September likely having the texts that Alex Jones’ attorney sent to the opposition in his defamation trial, additional witnesses that have stepped forward, and whatever additional materials that may be made available, the material of the texts and documents recovered from Mar-a-Lago may become significantly more relevant.  I anticipate that the resources allotted to continue the relevant investigations will reflect this.

Thumbnail Credits: Associated Press

Sources

  1. The above article is a legal opinion piece by Attorney Ryan Campbell.
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