The federal probe into former President Donald Trump’s handling of White House documents that kicked off, at least publicly, after the FBI raid of his Mar-a-Lago residence on Aug. 8, is spinning out headlines almost every day now.
Granted, the investigation into a former president for potentially serious crimes—violations of the Espionage Act, among others—doesn’t happen every day. But how should the public make sense of the whirlwind coverage?
News@Northeastern spoke with Daniel Medwed, university distinguished professor of law and criminal justice, about the latest developments in the Department of Justice’s probe into Trump—and where the case could be headed next. Medwed’s comments have been edited for brevity and clarity.
Bring us up to speed, to the extent that you can, about this investigation; and what, in your mind, are some of the more noteworthy or important details about how all of this is playing out so far?
Let’s start at the beginning. It seems like there’s credible information that former president Trump had classified and/or other documents that should have been returned under the Presidential Records Act at his residence in Mar-a-Lago. So there doesn’t seem to be a huge issue surrounding the legitimacy of that search warrant, which has been released in heavily redacted form. The battle right now seems to be on two fronts. The first is what documents are essentially fair game for the FBI to review; in other words, Trump’s team is saying that many of these documents are privileged and they shouldn’t be part of the investigation. And then the second piece of this, of course, is what kind of criminal exposure might Trump be facing, and the timing of that given the looming midterms.
Let’s take those two questions in turn. After the FBI completed its search, they retrieved thousands of documents. Then the Department of Justice assigned what’s called a filter team to go through the documents and weed out the ones that the FBI agents and/or the lawyers involved in the case shouldn’t look at, because they are privileged. The other privilege that Trump is asserting is what he claims is executive privilege—that these are documents generated when he was president and they should not be disclosed to the FBI. So the filter team would have weeded out any attorney-client information, and there’s no reason to think there’s lots of it there. Maybe there’s stuff from his lawyers about Jan. 6 or other matters—I don’t know. But the DOJ indicated that some documents were excised as a result of the filter team’s work. It seems like Trump was not pleased with that, and that’s where this whole special master comes in, which is now in front of a Trump-appointed judge in Florida.
But here’s where the plot thickens. By suggesting that there should be a special master, it’s going to really delay this process. First, you have to find a special master and there could be a huge battle over who that is. The DOJ might protest many of the people that Trump’s team recommends; Trump’s team is going to balk at anybody else, which might lead to a stalemate of sorts. So picking that person is going to take some time. Not to mention the time it will take for the review.
The latest headline is that the Justice Department is “open to accepting” one of Trump team’s picks for a “special master” job, which is to appoint an outsider to conduct an independent review of the documents. Do you think the DOJ might be showing that it’s receptive in order to help move things along?
The DOJ is probably confident enough in its filter team and the work that the filter team did that as long as there’s a credible person who’s going to do the job, they’re not going to protest. If Sidney Powell were recommended, maybe they would have protested—or someone clearly in Trump’s orbit. But I think it’s a really great point. I think it signals two things: first that the DOJ is confident that it’s already done a good job of reviewing materials through its filter team; so it doesn’t think that a special master will uncover any smoking gun … and second I think it’s a sign that they want to get going—that they want to get this started while they have momentum. It’s not about politics, but they have momentum in the case. You have FBI agents who have conducted a raid, you have a team in place that’s working on it, and you don’t want it to drag through this special master process for six months or more.
How would you assess the way the Justice Department and Attorney General Merrick Garland have handled the case so far? Are there things they should have done differently, or are they proceeding by the book?
My take is I think Merrick Garland has a reputation for being very careful. When I first heard about the raid, I was fairly confident that they had a lot of evidence. They weren’t going to conduct a raid of a former president’s personal home unless they had more than probable cause that there were documents that shouldn’t be there. And that appears to be the case; the documents were where the affidavit suggested they would be. Merrick Garland—again I want to put politics aside—from a legal perspective, seems to be dotting his I’s and crossing his T’s, and sort of doing it by the book. Of course there are going to be accusations of politicization, but it seems like, to the extent that you can put aside the backstory, Garland is proceeding with caution.
Despite all of the noise surrounding this case, it’s still in the investigation phase. No one is being prosecuted as of now, correct?
You’re exactly right. What’ll happen is prosecutors will have to determine, based on their review of these documents and other evidence that they’ve accumulated, that there is probable cause of a crime. And then they would have to seek an indictment from a grand jury, a secret body, and that’s when formal charges will attach. So we’re at a very early stage; it’s the investigative stage, and I don’t know when, or if we’ll ever get to a point where there’s a potential indictment. That’s dependent completely on what is in those documents. Now based on what we’ve heard, either through DOJ revelations or leaks, there appear to be documents there that are top secret, and the law seems pretty clear that you’re not supposed to have those documents in your possession. A lot of those documents aren’t even supposed to leave the skiff room, let alone wind up in a private residence in a different state. I think the intelligence community, and those who have their ears to the intelligence community, are really concerned about this as a violation of, at a minimum, mishandling classified information, or mishandling presidential records.
Now just because prosecutors think they have probable cause to charge a crime doesn’t mean they have to. It’s up to their discretion. The annals of criminal justice history are full of instances where prosecutors thought they had enough, but decided not to charge for various reasons. Maybe they thought it was a bad idea politically, or they didn’t think a jury would find guilt beyond a reasonable doubt, even though they thought probable cause. It’s going to be really interesting to see in the coming months if the investigation results in charges—and if so, what those might be. But I think at this point it’s good for us to be a little cautious and wait for this to play out.