How the FBI got the keys to Mar-a-Lago

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Aug 09, 2022 View in browser   By Ankush Khardori ELECTION NIGHT — Keep up with tonight's election results on POLITICO's live pages for primaries in Connecticut , Minnesota , Vermont and Wisconsin . Donald Trump's Mar-a-Lago resort from above. | Joe Raedle/Getty Images 'NO ORDINARY CASE' — The late-breaking news Monday about the search of Donald Trump's Mar-a-Lago residence shocked the political world . There is no obvious precedent in the nation's history for the involuntary search of a former president's home as part of a criminal probe by the Justice Department, so this was a surprising turn of events even for a man who has managed to test many political boundaries since announcing his candidacy seven years ago. How did this come about? The Justice Department has reportedly been investigating the potential mishandling and improper retention of classified information at Trump's residence since the spring, after the National Archives disclosed that it had recovered 15 boxes of documents from Mar-a-Lago in January that should have been provided to the agency upon Trump's departure from the White House. The inquiry appears to be legally and factually distinct from the Justice Department's other investigative work concerning Trump's conduct prior to and during the siege of the U.S. Capitol on Jan. 6, 2021. There are at least a couple of criminal statutes that may be at issue. One of them prohibits the improper removal of classified information from government facilities. Another statute targets the improper destruction of government records — a subject that already happened to be back in the news this week based on additional reporting suggesting that Trump may have flushed White House documents down the toilet. Of course, criminal investigations into the mishandling of classified information are not exactly unprecedented . During the 2016 presidential campaign, Trump himself repeatedly led chants of "lock her up" in order to capitalize on the Justice Department's investigation into Hillary Clinton's use of an email server as secretary of State during the Obama administration. (That investigation ended without charges .) Still, there is no obvious precedent for an investigation concerning a former president's handling of government documents. In theory at least, any such investigation could be complicated by a president's broad declassification authority. Thus far at least, Trump has provided no meaningful reason to believe that he properly declassified any classified material that he may have taken to Mar-a-Lago. What does it mean to get a search warrant for someone's property? In order to get a warrant to search someone's property, the Justice Department has to make an application to a federal judge that demonstrates that there is probable cause to believe that evidence of one or more crimes is on the premises. This is almost always an ex parte application — meaning that the government is communicating with the court without the involvement of a lawyer representing the party whose property will be searched — even in routine criminal investigations. As a result, the information tends to be one-sided in nature, but the judge is required to exercise independent legal judgment as to whether the government has met its legal burden. The warrant provides a legal basis for the search but is not necessarily a referendum on the conduct of the owner. Technically, the person whose property is being searched does not need to be a target or even subject of the criminal probe, though this does tend to be the case. The phrase "probable cause" also sometimes lends itself to understandable confusion. It does not mean that the government has shown that it is more likely than not that there is evidence of a crime. The standard generally just requires law enforcement officers to establish that there is a reasonable basis to believe that there is evidence of a crime on the premises, and in the ordinary case, that can be a relatively low threshold as a technical matter. This helps to explain why there are sometimes high-profile searches pursuant to warrants that do not yield criminal charges . Of course, this is no ordinary case. We are talking about a former president and potential 2024 candidate, so it is fair to assume that the government sought to establish a more robust basis for the search than it otherwise would have if the owner of the property were literally anyone but Trump. Exactly what that was remains to be seen, but it is now one of the most important questions in American politics. Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com . Or contact tonight's author at ankush.khardori@gmail.com .   STEP INSIDE THE WEST WING: What's really happening in West Wing offices? Find out who's up, who's down, and who really has the president's ear in our West Wing Playbook newsletter, the insider's guide to the Biden White House and Cabinet. For buzzy nuggets and details that you won't find anywhere else, subscribe today .     What'd I Miss? — Biden administration authorizes emergency monkeypox vaccine strategy: The FDA issued an emergency use authorization today that allows health care providers to administer a fraction of a dose of the Jynneos monkeypox vaccine to adults between layers of skin instead of beneath it. Two doses of the vaccine four weeks apart will still be required, but the new method will increase the number of doses available by "up to five-fold," according to the FDA. There is limited data supporting the method's efficacy, indicating how much pressure the Biden administration is under now to stop the spreading virus. — Biden ends slog on semiconductor bill with signature: President Joe Biden signed the CHIPS and Science bill into law today, authorizing $52 billion in subsidies for semiconductor production and boosting funding for research. The bill's signing represents nearly two years of legislative work from Senate Majority Leader Chuck Schumer and Sen. Todd Young (R-Ind.), co-sponsors of the legislation that began its path to Biden's desk as the Endless Frontiers Act in 2021. — House panel can demand Trump's tax returns, appeals court rules: In a unanimous ruling, a three-judge panel for the D.C. Circuit Court of Appeals agreed that the Ways and Means Committee's request complied with the law, that it was made in support of potential legislation on matters like the Presidential Audit Program and that the request did not violate the separation of powers — particularly given Trump's status as a former president. The ruling is the latest legal victory for the House against Trump, though it will likely be appealed to the full bench of that appeals court or the Supreme Court. — GOP polls show House battlefield stretching into double-digit Biden districts: Four surveys conducted in late July reveal close races in open seats in Oregon, Colorado and California that Biden carried by between 11 and 15 points in 2020. Taken all together, GOP operatives view the data as a sign that Biden's sinking approval numbers could drag Democratic candidates down enough to bring deep blue turf into reach. — Grand jury declines to indict woman in Emmett Till lynching: A Mississippi grand jury has declined to indict the white woman whose accusation set off the lynching of Black teenager Emmett Till nearly 70 years ago , most likely closing the case that shocked a nation and galvanized the modern civil rights movement. After hearing more than seven hours of testimony from investigators and witnesses, a Leflore County grand jury last week determined there was insufficient evidence to indict Carolyn Bryant Donham on charges of kidnapping and manslaughter, Leflore County District Attorney Dewayne Richardson said in a news release today.   INTRODUCING POWER SWITCH: The energy landscape is profoundly transforming. Power Switch is a daily newsletter that unlocks the most important stories driving the energy sector and the political forces shaping critical decisions about your energy future, from production to storage, distribution to consumption. Don't miss out on Power Switch, your guide to the politics of energy transformation in America and around the world. SUBSCRIBE TODAY .     AROUND THE WORLD BRINKMANSHIP — China has used House Speaker Nancy Pelosi's visit to Taiwan as a pretext to prepare for an invasion of the self-ruled territory , Taipei's Foreign Minister Joseph Wu said today. Speaking during a press conference in Taipei, Wu said: "China has used the drills in its military playbook to prepare for the invasion of Taiwan," adding: "China's real intention is to alter the status quo in the Taiwan Strait and entire region." Tensions in the region surged on Monday, after Beijing announced more military drills in the seas and airspace around Taiwan, a day after the scheduled end of its exercises in the area, writes Camille Gijs . But Washington has sought to downplay the risk of escalation. In his first comments on the issue since Pelosi's trip, Biden on Monday said: "I'm not worried," before adding: "I'm concerned that they're moving as much as they are. But I don't think they're going to do anything more." Nightly Number 6 months The amount of time Wall Street's top derivatives regulator has given one of the country's only political betting markets to live. PredictIt — an 8-year-old trading hub where thousands of Washington insiders and politically savvy investors wager on everything from whether Biden will be his party's 2024 nominee to who will win the San Jose mayoral election — will shut down in the U.S. in February after the Commodity Futures Trading Commission said it failed to comply with market rules . Parting Words Chris Christie, one of the few potential Republican 2024 candidates who did not immediately defend Trump in the aftermath of the Mar-a-Lago search. | Alex Wong/Getty Images MISSION MAR-A-LAGO: FALLOUT — The search of Trump's Florida compound by federal agents Monday has the former president's base rallying to stand with him — including many of his potential rivals for the 2024 GOP presidential nomination, write Matt Berg , Marissa Martinez and Matt Dixon . While Chris Christie and Tim Scott were among few exceptions, the reaction among potential Republican presidential candidates was to defend Trump. That included former Vice President Mike Pence, who has broken with Trump in several ways this year amid fallout from the Jan. 6 Capitol insurrection, before which Trump pressured Pence not to certify the 2020 election results. Here's a round-up of some of their responses: Former Vice President Mike Pence: "No former President of the United States has ever been subject to a raid of their personal residence in American history. After years where FBI agents were found to be acting on political motivation during our administration, the appearance of continued partisanship by the Justice Department must be addressed. Yesterday's action undermines public confidence in our system of justice and Attorney General Garland must give a full accounting to the American people as to why this action was taken and he must do so immediately." Florida Gov. Ron DeSantis: "The raid on [Mar-a-Lago] is another escalation in the weaponization of federal agencies against the regime's political opponents, while people like Hunter Biden get treated with kid gloves." South Dakota Gov. Kristi Noem: "The FBI raid on President Trump's home is an unprecedented political weaponization of the Justice Department. They've been after President Trump as a candidate, as President, and now as a former President. Using the criminal justice system in this manner is un-American." Virginia Gov. Glenn Youngkin: "A stunning move by the DOJ and FBI. This same DOJ labeled parents in Loudoun County as terrorists and failed to enforce federal law to protect Justices in their homes. Selective, politically motivated actions have no place in our democracy." Texas Gov. Greg Abbott: " This is next-level Nixonian. Never before has the country seen an Administration go to such extent to use the levers of government to target a former President and political rival. This weaponizes power to squelch dissent. Such abuses must have limits." Former New Jersey Gov. Chris Christie: "I trust that it had to have been and I hope that they understood the implications, both from a policy perspective for the Justice Department and politically, of doing something really as unprecedented as raiding the home or office of a former president," adding that the search of Trump's safe was "fair game." South Carolina Sen. Tim Scott: "We need to let this play out and see exactly what happens. But we should have been stunned and surprised and shocked with what happened yesterday." Did someone forward this email to you?  Sign up here .   Follow us on Twitter Charlie Mahtesian @PoliticoCharlie Calder McHugh @calder_mchugh Myah Ward @myahward Naomi Andu @naomiandu   Follow us

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