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Legal scholars are questioning whether the FBI’s raid on former President Donald Trump’s Florida home over classified White House documents was necessary.
Some experts told Fox News Digital the basis for the raid, which centers on Trump’s purported failure to hand over potentially classified documents to the National Archives, is unprecedented.
“Based on what we now know, it was totally unjustified, even one FBI agent would have been too many,” said Alan Dershowitz, a professor at Harvard Law School who served on Trump’s legal team for the president’s first impeachment case. “The whole process was wrong and Trump was away at the time, so they can’t say he was going to destroy anything.”
Legal scholars note that when individuals previously violated the law regarding classified documents, the Justice Department has opted to either not prosecute or settle for lesser charges.
UNITED STATES – 2017/05/07: Alan Dershowitz, Felix Frankfurter Professor of Law Emeritus at Harvard, at the Jerusalem Post Annual Conference in New York City. (Photo by Michael Brochstein/SOPA Images/LightRocket via Getty Images) (Michael Brochstein/SOPA Images/LightRocket via Getty Images)
“The Presidential Records Act is not commonly a subject of criminal prosecution, even in the most egregious cases,” said Jonathan Turley, a professor at the George Washington University Law School. “These incidents have generally been handled administratively.”
In 2004, for instance, the DOJ prosecuted former Clinton-era National Security Adviser Sandy Berger for the unauthorized removal and destruction of classified material from the National Archives. The former NSA adviser removed from the National Archives five copies of a report detailing the Clinton administration’s handling of a series of unsuccessful terror attacks planned by al Qaeda for the 2000 millennium.
Berger, who removed copies of the report by stuffing them in his pants and socks, was sentenced to only two years probation and stripped of his security clearance for three years.
“These cases overall have not been subject to aggressive criminal prosecution in the past,” said Turley.
A large group of FBI agents raided Trump’s Mar-a-Lago estate Monday with search warrants. The raid was reportedly related to materials the former president brought to the residence after leaving the White House in January 2021.
The Presidential Records Act of 1978 and other federal laws bar the removal of classified documents from unauthorized locations. For months, the National Archives has sought to obtain documents pertaining to Trump’s White House tenure from Mar-a-Lago.
In February, Trump handed the record-keeping agency 15 boxes of documents from the estate, including official correspondence between Trump and foreign heads of state.
“After working and cooperating with the relevant Government agencies, this unannounced raid on my home was not necessary or appropriate,” the former president said in a statement. Trump’s representatives had informed the archives that they are continuing to search for additional Presidential records that belong to the National Archives
Former President Donald Trump speaks to Fox News Digital at CPAC in Texas. (Fox News Digital)
Some experts question the need for the raid if Trump was, as claimed, cooperating with the National Archives. They note that the National Archives would have had to refer the matter to the Justice Department.
“To get a warrant, prosecutors would need probable cause to believe that a crime has been committed and that the search would turn up evidence or fruits of the crime at the location of the search,” said Robert Leider, an assistant professor at the Antonin Scalia Law School at George Mason University.
Given Trump’s status as a former head of state, Attorney General Merrick Garland likely would have to approve the search warrant. The warrant would have had to specify what crimes they believed Trump had committed.
Critics say the Justice Department needs to be transparent about its reasoning for the raid.
President Joe Biden, left, listens as Attorney General Merrick Garland, right, speaks during an event in the State Dining room of the White House in Washington, Wednesday, June 23, 2021, to discuss gun crime prevention strategy. (AP Photo/Susan Walsh) (AP)
“This is a historic raid on the residence of a former president as well as a presumed candidate for the next presidential election,” said Turley. “The public needs to know the reasons for the Justice Department’s decision.
Others also criticized the way in which the raid was handled. Dershowitz, in particular, noted that FBI agents likely seized documents without inquiring if they were classified, declassified, or personal to Trump.
“The Justice Department had no right to seize them indiscriminately because some may not be classified and others may be classified above their level,” he said. “There are things that have been declassified by the president, which the Justice Department doesn’t know about.”
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Since Trump had handed over documents to the National Archives in the past, experts say the federal government should have simply subpoenaed the records as required. Instead, they claim the Justice Department has now created a situation where everything seized by the FBI will have to be reviewed by both sides to ensure Trump’s privacy is not invaded.
“Trump’s lawyers should be in court already demanding that nobody in the government look in any of the boxes until they have an opportunity to challenge the reason for the raid,” said Dershowitz.