Former President Donald Trump’s response to the FBI’s search of his Mar-a-Lago residence is paying off … for the Justice Department, not for him.
Trump was quick to point out the historic nature of this search, which in his words was “unAmerican, unwarranted, and unnecessary.” But far from helping his case, statements like this merely show that the Justice Department viewed Trump’s apparent mishandling of government documents as an unprecedented threat.
The only thing consistent about Trump’s defense strategy is that it is largely incoherent and legally irrelevant.
So far, the only thing consistent about Trump’s defense strategy is that it is largely incoherent and legally irrelevant. Trump intimated that the FBI planted documents at his estate in Palm Beach, Florida. The problem with that, in addition to the fact that there is no basis for this claim, is that Trump has also argued that there is no problem with his having said documents not only because they are privileged but also because he declassified them. The National Archives and Records Administration rejected Trump’s previous privilege arguments, which were likely little more than an attempt to stonewall the investigation.
Trump’s pivot to arguing that he declassified the documents has two primary problems. First, there’s no proof that he actually did declassify the documents. Indeed, the letter from Trump’s attorney that was included as an exhibit in the partial release of the affidavit argues only that Trump had the power to declassify documents when he was president, not that he actually did so. Second, even if he did, none of the federal statutes cited in the search warrant depend on the documents’ being classified. Simply put, declassification isn’t a helpful defense for Trump.
Trump has also argued out of court for the release of the search warrant and supporting documents, claiming they were “drawn up by radical left Democrats and possible future political opponents.” It’s worth noting that this line of attack has allowed Trump to do two things. First, it allowed him to claim that he was pushing for more transparency and that more information would bolster his argument that the investigation is nothing more than a witch hunt. Trump, of course, didn’t actually join in the lawsuit to release the affidavit; he merely argued out of court that the documents should be released. Second, this attack provided Trump cover to argue that if the documents were released and they proved hurtful instead of helpful for his case, we simply shouldn’t trust those documents.
Let’s be clear: The documents are, in fact, bad for Trump.
The first document the Justice Department released was the search warrant itself. Likely in response to Trump’s baseless claims that the execution of the search warrant was the product of a political attack, not part of a legal investigation, Attorney General Merrick Garland showed us a key piece of that investigation, the warrant itself. Trump shined a spotlight on the investigation, and Garland grabbed that light, which only cast additional doubt on Trump’s claims.
We learned from the warrant that the investigation involves the possible violation of three federal criminal statutes, related to obstruction of justice, the Espionage Act and the unlawful taking of retention of government documents. The documents at issue included those listed as “top secret,” which, it should go without saying, shouldn’t be stored at a private residence/hotel/social club. Because who doesn’t want national defense information stored in what might be akin to a hotel safe? These are serious crimes, and if convicted, Trump could face decades in a federal prison.
Trump shined a spotlight on the investigation, and Garland grabbed that light, which only cast additional doubt on Trump’s claims. The second set of documents includes a redacted version of the affidavit submitted in support of the search warrant. The additional information should cause additional concern for Trump. Taken as a whole, the affidavit includes information directly belying Trump’s claims that he would have simply given over documents that the government requested. Instead, the affidavit shows that the government asked Trump for these documents for months and that he failed to hand them over. In addition, the affidavit shows why the government was so insistent on getting these documents back, because it believed they included extremely sensitive information, involving human sources, that could threaten our security and the security of those who provide the information. The affidavit indicates not just that Trump had retained and later turned over more than 184 classified documents, including 25 documents marked “top secret,” but also that law enforcement believed there was probable cause to indicate that additional classified documents that included national defense information were at Mar-a-Lago. Reporting indicates that this is exactly what the FBI found. Perhaps we shouldn’t take Trump’s semi-coherent bluster seriously anymore. Maybe we shouldn’t pay attention when he throws political and legal rubbish at the wall and hopes something sticks enough to gin up support from his base and perhaps scare law enforcement away from, well, supporting the rule of law. But two things are clear. The more Trump says, the worse this investigation is getting for him. And the more we learn, the more evidence we have that Trump isn’t a person who should ever be in a position of power again. Far from protecting and defending our country, all signs point to his putting it at serious risk.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
