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Justice Department should have subpoenaed documents, not raided Trump’s home [DERSHOWITZ]
The Hill ^ | 8-9-22 | ALAN M. DERSHOWITZ

Posted on 08/09/2022 10:56:51 AM PDT by SJackson

The decision by the Justice Department to conduct a full-scale morning raid on Donald Trump’s Mar-a-Largo home does not seem justified, based on what we know as of now. If it is true that the basis of the raid was the former president’s alleged removal of classified material from the White House, that would constitute a double standard of justice. 

There were no raids, for example, on the homes of Hillary Clinton or former Clinton administration national security adviser Sandy Berger for comparable allegations of mishandling official records in the recent past. Previous violations of the Presidential Records Act typically have been punished by administrative fines, not criminal prosecution. Perhaps there are legitimate reasons for applying a different standard to Trump’s conduct, but those are not readily obvious at this stage.

The more appropriate action would have been for a grand jury to issue a subpoena for any boxes of material that were seized and for Trump’s private safe that was opened. That would have given Trump’s lawyers the opportunity to challenge the subpoena on various grounds — that some of the material was not classified; that previous classified material was declassified by Trump; that other documents may be covered by various privileges, such as executive or lawyer-client. 

Instead, the FBI apparently seized everything in view and will sort the documents and other material without a court’s deciding which ones are appropriately subject to Justice Department seizure. 

Searches and seizures should only be used when subpoenas are inappropriate because of the risk of evidence destruction. It is important to note that Trump himself was 1,000 miles away when the FBI’s search and seizure occurred. It would have been impossible, therefore, for him to destroy subpoenaed evidence, especially if the subpoena demanded immediate production. If he or anyone else destroyed evidence that was subject to a subpoena, that would be a far more serious crime than what the search warrant seems to have alleged. It is unlikely that there is a basis for believing that the search warrant was sought because of a legitimate fear that subpoenaed evidence would be destroyed.

Defenders of the raid argue that the search warrant was issued by a judge. Yet every criminal defense lawyer knows that search warrants are issued routinely and less critically than candy is distributed on Halloween; judges rarely exercise real discretion or real supervision. It may be different when a president’s home is the object of the search, but only time will tell whether that was the case here.

Neutral, objective justice must not only be done: it must be seen to be done. 

For zealous Trump haters, anything done to Trump is justified. For zealous Trump lovers, nothing done to him is ever justified. For the majority of moderate, thoughtful Americans, however, the Justice Department’s raid likely seems — at least at this point in time — to be unjust or needlessly confrontational. 

Thus, it is now up to the Justice Department and the FBI to justify their actions to the American public. They must explain why a different standard appears to have been applied to Democrats such as Clinton and Berger than to Republicans such as Trump and many of his associates

Critics of this demand for a single standard of justice insultingly call it “whataboutism.” A more appropriate term would be “the shoe on the other foot test.” No government act should ever be accepted unless it would be equally applied if the shoe were on the other foot — in other words, if it were applied equally to political friends and foes. This is the essence of our constitutional requirement of the equal protection of the law. 

For now, let’s not rush to judgment. Let’s give the attorney general, Merrick Garland, and the director of the FBI, Christopher Wray, the opportunity to explain their actions. If they decline to do so, on the basis of confidentiality, a special master should be appointed by the relevant court to assess the evidence seized from Trump’s home on a confidential basis. In the alternative, a true congressional committee comprised of both Democrats and Republicans should be appointed to investigate this raid.


TOPICS: Editorial; Government; Politics/Elections
KEYWORDS:

1 posted on 08/09/2022 10:56:51 AM PDT by SJackson
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To: SJackson

The justice department is a criminal organization, taking orders from the head capo. It doesn’t follow the law or do what is right.


2 posted on 08/09/2022 11:03:38 AM PDT by I want the USA back (Damn it! We need Trump! America First! Bring America back! We're being governed by fascists.)
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To: SJackson

They did this so Biden and his media minions can make a show of it. It’s pure politics.


3 posted on 08/09/2022 11:04:16 AM PDT by MercyFlush (☭☭☭ Soviet Russia must be destroyed. ☭☭☭)
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To: SJackson

And Roger Stone was already cooperating through his lawyers. No need to terrify his wife in the dark break into their home and throw her lingerie and family photos on the floor and step on them, with a dozen officers carrying automatic weapons. One overly nervous rookie could have killed the two of them.

This is Gestapo tactics with FBI insignia replacing the German ones.

What kind of a country did our Dem neighbors and relatives bring us? They deserve no pity, understanding or mercy.
They arrogantly think anything done to us is okay. Only their side counts. Say the word “Trump” to one of them and test that.


4 posted on 08/09/2022 11:07:16 AM PDT by frank ballenger (You have summoned up a thundercloud. You're gonna hear from me. Anthem by Leonard Cohen)
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To: SJackson
The Mar-a-Lago raid follows a pattern: Trump allies are typically subjected to SWAT-style raids with teams of heavily-armed agents, sometimes backed by armored vehicles. Doors are smashed in, and military-grade weapons are pointed in the faces of people who may not even know what is happening, often people who have been roused from sleep and aren't even fully awake.

Yet despite a long history of violence and an anti-American Marxist agenda, I have never heard of a single FBI raid on any BLM, Antifa, or pro-abortion individual.
5 posted on 08/09/2022 11:08:05 AM PDT by Steve_Seattle
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To: SJackson

I can only hope like hell that Trump has learned his lesson and would get elected only to fire every DOJ attorney and their entire staff then follow up on the FBI and the rest of the federal government.


6 posted on 08/09/2022 11:09:33 AM PDT by CodeToad (Arm up! They have!)
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To: SJackson

They figured Trump would immediately destroy all incriminating evidence upon receiving a subpoena... which, of course, is what Democrats do.


7 posted on 08/09/2022 11:15:04 AM PDT by alancarp (George Orwell was an optimist.)
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To: SJackson

“For now, let’s not rush to judgment.”

Well, lets not rush to forget common sense. Your raiding a former POTUS home for records, and you take everything, and have CNN in on it. What, for the love of god, could have been so drastic and dangerous, that you couldn’t use a standard process for?

The answer can’t be that you were afraid of them destroying specific evidence.....because you took everything in a shotgun raid. There wasn’t anything specific about it.

The answer can’t be that it was life and death to save America or protect from international spying, because you never raided the Clintons, Obama, or even Bidens (Hunter and Joe tax evasion joint accounts).

To my knowledge, Trump hasn’t had detractors or whistleblower end up dead like the Clintons, so it’s unlikely it’s murder or to prevent murder.

I considered the Jan 6th process to stay in power. Documents that would show that he plotted with his lawyers, and had hand written notes, to challenge the election of Joe Biden at the electorial college level. Which more than 50% of Americans believe was a fraudulent election even today. You might be able to use those documents to get an indictment of a grand jury in DC, but then it would be thrown out in court as illegal search and siezure anyway. It would be viewed as a political stunt even if you found ‘Alleged’ evidence. It would be viewed as STUPID, TYRANNICAL, POLITICALLY MOTIVATED if you found nothing. This seems like a insane approach, since no evidence exists of anything on Trump, and the Jan 6th hearings are joke except for people who hate Trump and care not for facts (because they aren’t getting them there).

So, what could be so important, that you couldn’t go through channels and you had to get by this technique? Declassified records, which were declassified by then POTUS, that clearly demonstrate a problem. What did Trump declassify.....SPYGATE. What does it show that they don’t want the world to know about?

I would bet the documents lead to proof that the FBI, CIA, along with the Executive branch of Government, including but not limited to the then POTUS and VPOTUS, did political spying. They needed to eliminate that proof, because it’s the end of these organizations if it gets out.


8 posted on 08/09/2022 11:18:24 AM PDT by Pete Dovgan
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To: SJackson

“For now, let’s not rush to judgment. Let’s give the attorney general, Merrick Garland, and the director of the FBI, Christopher Wray, the opportunity to explain their actions. If they decline to do so, on the basis of confidentiality, a special master should be appointed by the relevant court to assess the evidence seized from Trump’s home on a confidential basis. In the alternative, a true congressional committee comprised of both Democrats and Republicans should be appointed to investigate this raid.”

I predict none of these things will happen.


9 posted on 08/09/2022 11:40:43 AM PDT by Boogieman
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To: frank ballenger

they’re thugs


10 posted on 08/09/2022 11:43:04 AM PDT by Gene Eric (Don't be a statist!)
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To: SJackson

They dont even know what theyre looking for... thats why there are no subpoenas.


11 posted on 08/09/2022 12:41:47 PM PDT by MrRelevant
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To: SJackson
the former president’s alleged removal of classified material from the White House, that would constitute a double standard of justice. There were no raids, for example, on the homes of Hillary Clinton or former Clinton administration national security adviser Sandy Berger for comparable allegations of mishandling official records

Sandy Berger clearly stole documents and Mrs. Bill Clinton virtually gave away Secret and Top-Secret documents. Trump may have brought them with him instead of turning them over to the National Archives when he left the White House. (Note: he kept them in a safe.) That's hardly comparable.

12 posted on 08/09/2022 1:06:08 PM PDT by libertylover (Our biggest problem, BY FAR, is that almost all of big media is agenda-driven, not-truth driven.)
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To: SJackson

This is perhaps the best commentary on how weaponized the DOJ and FBI have become and the depths to which Trump scares the DEEP STATE. They will do ANYTHING to stop him.


13 posted on 08/09/2022 1:13:32 PM PDT by Robert357
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To: Boogieman
In the alternative, a true congressional committee comprised of both Democrats and Republicans should be appointed to investigate this raid

#1 Liz Cheney #2 Kinzigner

14 posted on 08/09/2022 2:57:20 PM PDT by ding_dong_daddy_from_dumas (Re-imagine the media!)
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To: SJackson

I suspect the items they seek could not be described in any legal document.


15 posted on 08/09/2022 10:36:16 PM PDT by JustaTech (A mind is a terrible thing)
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To: MrRelevant

or-———— what they are looking for cannot be named.... as in Trump had proof of the previous administration’s treachery and violations of the Constitution. They didn’t get a subpoena because they want to HIDE what they are looking for. Trump had the “goods” on them all, and they had to get it back before Trump released it——— which is what he said he was going to do. Go read up on Tom Fitton. Also explains why they sent WFO down to Palm Beach instead of having the local Field Office execute their “warrant”.


16 posted on 08/10/2022 3:51:56 AM PDT by Segovia
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To: Pete Dovgan

I concur. 100%. and I have experience with the actors we are discussing.


17 posted on 08/10/2022 3:54:08 AM PDT by Segovia
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To: Segovia

Judicial watch just sued Biden and DOJ.

Failure to release declassified documents via FOIA request.

They want people to think it’s Jan 6th, but it is really about SPYGATE.


18 posted on 08/10/2022 4:35:53 AM PDT by Pete Dovgan
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