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‘You Can’t Play the Cable-News Game in Court’

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The FBI’s search of Mar-a-Lago, followed by its characteristic silence regarding an ongoing investigation, has left the door open to rampant speculation. One thing’s clear: Donald Trump is under serious scrutiny for his handling of classified information. I spoke with Bradley P. Moss, a lawyer who specializes in national-security issues, about the laws Trump may be under investigation for breaking, what prosecution of a case involving classified documents would look like, and whether the Department of Justice should explain what it’s doing.

Even some non-Trumpers who believe that no president should be above the law are a little uneasy about the Mar-a-Lago search. There’s a lot we don’t know about what the Department of Justice is after, but where do you land on the balance between following the letter of the law and trying to avoid political backlash?
I think, with the Justice Department, this appears to be — and I’m basing this only off of what we know from public reporting — the last resort. The only reason they even learned initially of the missing records was because, a year after Donald Trump had left the White House, they discovered that there were all kinds of records missing from what was supposed to have been turned over when Trump finished his term, and they reached out to Trump’s staff at Mar-a-Lago. That was where the initial 15 boxes of information came from, and all kinds of classified documents were found in the boxes. That resulted in the referral to the DOJ, and the DOJ has spent the last six, seven months negotiating with Trump’s team, trying to gather whether there were any additional records. As the reporting indicates, in June, they went out to Mar-a-Lago for an inspection and found more documents, and discussions have continued further since then.

So the Justice Department had a very difficult conundrum. They knew they were going to get slammed. They know there’s very little they can say publicly under DOJ rules and grand-jury secrecy provisions about why they’ve done this. But they also know that there’s classified information sitting out there in an unsecured location. Any number of foreign visitors come to Mar-a-Lago all the time, any number of people can get in and out, and it doesn’t meet government security requirements. So they had to take action. If they felt the Trump team was simply not moving quickly enough, if they felt they were concealing things, that’s when they step in and say, “Enough is enough. You’ve had 18 months, and this is a matter of national security. We’re executing the search warrant and deciding if there’s going to be punishment for what was done.”

The DOJ has a policy of not commenting in the middle of an investigation. I see a lot of Republicans (but not just Republicans) calling on the DOJ to explain what it’s doing here given the unique circumstances. Do you think it should? And do you think it might do that?
No, I don’t think they should comment. And it’s for the reason that Trump is entitled not only to privacy on this matter but to a presumption of innocence. To disclose during an ongoing investigation, where there has been no indictment yet, details about what they’re investigating would prejudice not only Trump but a potential jury pool. If there is enough to bring a charge, they bring a charge and speak to the public........

© Daily Intelligencer

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