The Washington Post is reporting that there was a heated debate in the Justice Department over the decision to raid Mar-a-Lago in July 2022. The senior FBI agents objected that they believe that a consensual search was possible without the necessity of a raid. It was main Justice officials who overruled them and insisted on the raid. What is most striking about the account is that FBI agents were raising the very concerns that some of us voiced after the unprecedented raid on the home of a former president.
The Post describes a “tense showdown” a week before the raid. Jay Bratt, Chief of the Counterintelligence and Export Control Section (CES) of the National Security Division, joined other Justice officials to demand a raid. He was accompanied to the FBI by Assistant Attorney General Matt Olsen as well as two counterintelligence officials, George Toscas and Alan E. Kohler Jr.
Toscas previously worked on the Crossfire Hurricane and Clinton email investigations. He reportedly pushed for a raid.
The FBI pushed back hard, according to the Post. Steven M. D’Antuono, then the head of the FBI Washington field office was running the investigation and said that he considered the raid to be unnecessary and overkill. He wanted to arrange a consensual search. He reportedly even refused to conduct the raid without a direct order.
D’Antuono wanted to reach out to Trump’s lawyer, Evan Corcoran, who is a former Justice Department prosecutor to arrange the search. Reportedly, the objections angered Bratt and the meeting became loud and heated.
Notably, the article reports that D’Antuono “also questioned why the search would target presidential records as well as classified records, particularly because the May subpoena had only sought the latter.” It quotes him as objecting “we are not the presidential records police.”
Finally, D’Antuono reportedly demanded to know if Trump was officially the subject of the criminal investigation. As head of the FBI investigation, that was a telling question. Bratt reportedly replied “What does that matter?”
It mattered a great deal. A number of us expressed surprise later that presidential records were such a focus of a criminal indictment. Presidential record disputes are ordinarily administrative or civil matters. It turns out that the FBI itself shared that unease.
While it took long negotiations, the Trump team had previously turned over boxes of material to the National Archives. In January of that year, they returned 15 boxes of government records, including 184 classified documents consisting of 700 pages. The Trump team had also agreed to give the FBI access to the storage room and complied with directions on adding security to the room.
When classified documents were found by both Biden and Pence after the Trump raid, they were also not subject to search warrants but allowed to have counsel look for additional classified material. In all three cases, the FBI seemed to approach the controversies as collection rather than criminal efforts.
However, Bratt and the other main Justice officials were unwilling to seek a consensual raid and maintained that the Trump team might move to hide or destroy evidence. Such actions would, of course, constitute serious federal crimes.
The fact is that highly classified documents were found at Mar-a-Lago and past representations made by counsel were later challenged by the FBI as false. The Justice Department told the court that it believes that there was an effort to obstruct their investigation.
What is striking about the report is the preference, yet again, for the Justice Department to take the DEFCON 1 option over other alternatives in a matter involving Trump. If D’Antuono was allowed to seek a consensual search, any refusal would have largely blunted any later objections. Yet, the FBI General Counsel Jason Jones (who replaced the controversial James Baker at the Bureau) followed his predecessor’s more aggressive approach.
The report will only deepen the unease over how the Justice Department will handle the classified document controversy. Since the raid, President Joe Biden and former Vice President Michael Pence were both found to have classified material in their private homes. In the case of Biden, some of these documents go back over a decade to his time as a senator and were found in multiple locations from a university center office to his personal library to his garage.
While special counsels are investigating Trump and Biden on the matters, the ultimate decision will rest with Attorney General Merrick Garland who must decide if prosecution is in the public interest. Few people want to see Biden, Pence, and Trump indicted. Indeed, the Justice Department maintains that it cannot indict a sitting president like Biden. To prosecute only Trump for such unlawful possession would cause a public uproar.
Yet, some of us have long said that Trump’s greatest threat was the obstruction allegations out of Mar-a-Lago. One of his lawyers is reportedly cooperating with prosecutors. Those allegations do distinguish the Trump case, but it was also undermined by the Biden and Pence matters. In both cases, the FBI was also told that counsel or staff also conducted searches and found no additional documents before further discoveries were made. That does not mean that Trump’s conduct could not be found to be knowing and more culpable. That case will have to be made with undeniable clarity and evidence.
Garland may face this tough call within the year. Polls indicate a deepening distrust of the government and the Justice Department in particular. A fifth of Americans now view the government as the greatest threat facing the nation. Fifty percent of Americans only trust the FBI “some of the time” or “hardly ever.” These polls are consistent on roughly half of the country expressing distrust in the FBI. What is truly shocking is that 53% in one poll agreed with the statement that the FBI acts like “Biden’s Gestapo.”
I have previously testified that these views are unfair to the many agents who put their lives at risk to protect us and the rule of law. However, this deep distrust is only worsening as we head into what could prove the most divisive and potentially explosive election in modern history. Of course, Garland could channel Bratt’s reported approach and just say “what does it matter?” But it matters a lot if Garland is concerned about the public accepting that justice rather than politics is being done.