Attorneys David B. Rivkin Jr. and Lee A. Casey penned an op-ed for the Wall Street Journal saying the Trump warrant itself suggests “the FBI had no legally valid cause for the raid.”
The op-ed titled “The Trump Warrant Had No Legal Basis” explores the Presidential Records Act and how it applies to Trump’s case.
It points out that “nothing in the PRA suggests that the former president’s physical custody of his records can be considered unlawful under the statutes on which the Mar-a-Lago warrant is based.”
Was the Federal Bureau of Investigation justified in searching Donald Trump’s residence at Mar-a-Lago? The judge who issued the warrant for Mar-a-Lago has signaled that he is likely to release a redacted version of the affidavit supporting it. But the warrant itself suggests the answer is likely no—the FBI had no legally valid cause for the raid.
Those statutes are general in their text and application. But Mr. Trump’s documents are covered by a specific statute, the Presidential Records Act of 1978. It has long been the Supreme Court position, as stated in Morton v. Mancari (1974), that “where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” The former president’s rights under the PRA trump any application of the laws the FBI warrant cites.
In making a former president’s records available to him, the PRA doesn’t distinguish between materials that are and aren’t classified. That was a deliberate choice by Congress, as the existence of highly classified materials at the White House was a given long before 1978, and the statute specifically contemplates that classified materials will be present—making this a basis on which a president can impose a 12-year moratorium on public access.
The government obviously has an important interest in how classified materials are kept, whether or not they are presidential records. In this case, it appears that the FBI was initially satisfied with the installation of an additional lock on the relevant Mar-a-Lago storage room. If that was insufficient, and Mr. Trump refused to cooperate, the bureau could and should have sought a less intrusive judicial remedy than a search warrant—a restraining order allowing the materials to be moved to a location with the proper storage facilities, but also ensuring Mr. Trump continuing access. Surely that’s what the government would have done if any other former president were involved.
Trump released a statement on the Op-Ed calling it “irrefutably correct!” He said that “this assault on my home should NEVER have happened.”
Incredible (and irrefutably correct!) OPINION in today’s Wall Street Journal by highly respected constitutional scholars David B. Rivkin Jr. and Lee A. Casey, entitled, “The Trump Warrant Had No Legal Basis: A former’s president’s rights under the Presidential Records Act trump the statutes the FBI cited.” In other words, this assault on my home should NEVER have happened. A political weaponization of law Enforcement. What will I now do to get my reputation back?