Probable Cause
So let’s say the police have probable cause to believe there are illegal drugs in my home. Probable cause is simple – they have good evidence to show that the drugs are there. They get a judge to sign a warrant, allowing them to search for those drugs. That is the essence of the Fourth Amendment to the Constitution, we have a right “…to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures…”. A reasonable search is one supported by a warrant based on “…probable cause supported by Oath or Affirmation”.
So the police come in my house, and they search. They look in my office, they go through my desk drawers, and find bricks of heroin. In order to demonstrate that the bricks were found in the desk, they take pictures of them in the drawers, and then more pictures of the bricks stacked on the floor of my office.
So what’s the likelihood that the police take the bricks, give me a receipt, then just leave the house? It’s more likely that they take the bricks, handcuff me, and we all go “away”.
Need to Know
I am not the former President of the United States, and the documents pictured on the floor of Donald Trump office weren’t bricks of heroin. They are much more dangerous to the United States, documents of the highest classification, held by the former President at his Florida country club against government subpoena and Federal law. Some of the documents are so sensitive that, even if there is a trial, they will never be placed in evidence. A jury can’t see them. They are just that secret.
I’ve never handled government “secret” documents, but as a teacher, coach and administrator, I’ve known information that was confidential. Knowing confidential information is a responsibility and a burden. It required recognition that I “need to know” to make decisions and do my job, but I also need to make sure others don’t. I guess being “in the know” was a privilege, but it was also a liability. Often, “not knowing” would have been easier.
But once I retired, I no longer “needed” to know. And that raises the question: what did Donald Trump “need to know” as former President of the United States? Why was he keeping these secrets, clearly some of the most classified secrets of the Nation?
Having Secrets
There are only a few reasons to have them.
Let’s be clear about one thing – Donald Trump isn’t keeping these secrets to write his memoir. He’s not a writer. All the books with his name as the author were written by “ghosts”. Back in the Watergate era, Richard Nixon “bugged” his whole White House. He did that, so he would have exact transcripts of what was said and what was done when he wrote his memoirs. Unfortunately for him, he recorded himself and his staff committing felonies. So maybe Trump is keeping stuff “away” from the rest of the world, incriminating information of some sort.
Or, perhaps as part of Trump’s denial of the 2020 election results, he simply kept them because they are what “Presidents have”. There’s a delusional issue there that makes it clear he shouldn’t have them.
Maybe the former President simply wants to demonstrate that he still is “in the know”, even though the actual President of the United States, Joe Biden, revoked his access to security briefings and secure documents a few weeks after he took office. And potentially there is some form of “kompromat”, secure information that could be used against the former President’s enemies. A heading in the document list of secret information about the French President comes to mind. Or the legendary files of FBI Director J. Edgar Hoover, with “dirt” on any politician that got in his way.
Finally, information, particularly highly secret information, has monetary value. Donald Trump has always recognized “how to make a buck”. Maybe he sees the documents as a way to “cash in”.
Obstruction
So if the police found bricks of heroin in my office, there wasn’t any question that I violated the law. My possessing the bricks, for any reason, is in fact illegal. And if I heard the police at the door, and went and tried to hide the bricks before they came in, I was simply adding to the violations. I was committing the crime of “obstruction of justice”.
Maybe I had the bricks “for a friend”. Maybe I was keeping them to “study”. Or maybe they were just for my own personal use. But most likely, I had the bricks to sell, to make a profit. But all of that really doesn’t matter. The fact that I was in possession, and the fact that I obstructed the search, was far and away enough to take me off to the jail.
In the same way, there really is no need to have a “reason” for the former President to have the secret documents. He was knowingly in possession, without having a legal right. And, as we are discovering, he went to great lengths to hide them from the government. And the government bent over backwards to accommodate the former President. They asked, nicely, over and over again. They subpoenaed the documents. Then they sent the head of the FBI national security detail to his home. The former President and his staff assured the Justice Department that all of the documents were returned. But they weren’t.
He was in possession of national secrets of the highest classifications, without permission. Those documents were stored in a careless and insecure manner. And when he was asked, over and over and over to give then back, he refused to do so. And he even tried to “hide” the documents from the government.
Patience
They didn’t handcuff anyone when they searched Mara Lago. And the FBI still hasn’t arrested anyone. The Department of Justice is struggling. Do they, for the first time in American history, arrest a former President of the United States? And if they don’t, do they ignore a clear violation of American law, just because he was President? Shouldn’t the law apply to everyone, regardless of former employment or financial standing?
It is a serious dilemma for the Justice Department and Attorney General Merrick Garland. It’s likely they will, eventually, bring charges against Donald Trump, but forgive them if they want to wait. The government needs “all its ducks in a row”, and they need to get it right.
We all need to show patience.
