The search that the FBI conducted on Monday at Mar-a-Lago would be linked to an investigation into documents that Donald Trump allegedly illegally took with him when he left the White House. A case that seems trivial compared to other cases in which the former American president is implicated, but an obscure article of the United States Code could make it a political bomb.
This is an extraordinary search that could have extraordinary consequences. At least, that’s what opponents of Donald Trump hope after the raid on Monday, August 8, by the FBI at Mar-a-Lago, the residence of the former American president in Florida.
“They even broke into my trunk!” Donald Trump was offended in a press release in which he describes this raid as a political cabal organized by “the radical left” to prevent him from running in the presidential election of 2024.
But the ex-president did not indicate the official reason for which the federal agents searched and took away documents found on the spot. The FBI also did not specify for what purpose its agents had acted.
The Department of Justice has so far only launched two investigations targeting Donald Trump. The first concerns his efforts to overturn Joe Biden’s electoral victory in the 2020 presidential election, while the second concerns “classified” documents that the ex-president is accused of having illegally taken with him. him leaving the White House.
It is this last file which would be at the origin of the spectacular action of the FBI, according to the crushing majority of the American media.
And this is not good news for Donald Trump: if the FBI took the liberty of raiding the most famous residence of the ex-president, “it is because the investigators must have solid suspicions to find evidence of a crime on the spot”, underlines the Vox site.
Such a procedure “must be authorized by an order from a federal court, which means that the legal pressure on Donald Trump is much stronger than we could imagine until then”, notes the public radio NPR. Indeed, no judge gives his approval to an FBI operation likely to trigger a large-scale media and political shock wave without having first ensured that the risk of drawing a blank is minimal.
In any case, it is a hell of a legal escalation in a case that may seem relatively innocuous compared to the politically explosive record of events between the November 2020 election and the assault on the Capitol on January 6, 2021.
The National Archives vs Donald Trump
Originally, everything comes from the National Archives, which is seeking from mid-2021 to get their hands on sensitive files that Donald Trump is suspected of having “forgotten” to hand over to them when he left the White House. The law requires all presidents to leave classified documents when leaving office. “It is essential for our democracy. It is a means of surveillance, after the fact, of government action by the people,” said David S. Ferriero, then Archivist of the United States, in a statement published in February 2022.
In January 2022, 15 boxes filled with sheets, letters and other documents left Mar-a-Lago to join the National Archives. Donald Trump and his advisers let it be known that this is a misunderstanding which was settled in an atmosphere “of the most courteous”, tells the Washington Post which devoted a long investigation to these 15 boxes.
But on the side of the National Archives, the tone was much less conciliatory when the contents of these boxes were discovered. Among innocuous documents such as a birthday menu, official napkins from the presidency, there were other more confidential ones such as letters sent by North Korean dictator Kim Jong-un. And “some documents were so sensitive that it is impossible to discuss their existence in public”, notes the Washington post.
An inventory that prompted National Archives officials to ask the Department of Justice, in February 2022, to open an investigation to establish whether or not Donald Trump had violated the law on the preservation of classified official documents.
“It’s not easy to establish because you have to prove that Donald Trump knew he had no right to take these documents or that he voluntarily hidden or destroyed them to conceal traces”, notes CNN.
This is probably the objective of this recent search: to find proof that the ex-president took these documents in order to hide them. Investigators may also be looking for “other classified documents that Donald Trump did not hand over in January,” notes John Owens, a specialist in American politics at the University of Westminster. If the FBI has found any, the ex-president could hardly, this time, maintain that it is an unfortunate misunderstanding.
“It would then be a question of hiding classified documents, which is a federal crime”, assures Elie Honig, an American lawyer and legal columnist on CNN.
The Threat of Section 18 Section 2071 of the United States Code
And not just any crime. “The reason this search is such a political bombshell is enshrined in 18 section 2071 of the United States Code,” said tweeted Marc Elias, lawyer and former legal adviser to Hillary Clinton, the former Democratic presidential candidate. A text that punishes the deliberate concealment or destruction of official documents with a sentence of up to three years in prison. And above all, lead to the impossibility of running for an official post in the administration.
“Technically, Marc Elias is right: this text implies that if Donald Trump is found guilty of this crime, he may not have the right to run again in 2024”, recognizes Emma Long, specialist in the American judicial system at the University of ‘East Anglia (Norwich). But there are many “buts” to this assertion, tempers this political scientist.
The first concerns the procedure. “It would probably be very long and there is no certainty that it would be completed before the next election, which would allow Donald Trump to run again”, underlines Emma Long.
Then, there is a whole constitutional debate around this text. Indeed, the same threat of ineligibility had already been brandished in 2015 against… Hillary Clinton. Republicans, including Donald Trump, had assured that the former Democratic candidate’s destruction of emails she had sent as Secretary of State under Barack Obama prohibited her from being a candidate because of this famous Article 18 .
At the time, many American jurists had argued that this text applied to all offices of government except that of President of the United States. Indeed, the American Constitution fixes the conditions to become president “and it is nowhere indicated that it is necessary to have a clean criminal record or not to have destroyed classified document”, wrote Eugene Volokh, an American constitutional expert.
However, this legal question has never been definitively settled. In other words, “it would be up to the Supreme Court to decide and I do not think, given his very right political color, that it would render a judgment unfavorable to Trump”, believes John Owens.
Nevertheless, for this expert, any new conviction could be the straw that broke the camel’s back for Donald Trump. “He is already weakened by the hearings about the assault on the Capitol, his national approval rating is down, and if he were to be found guilty in another case, it could spell the end of his ambitions forever. “says John Owens.