Expert: Threats to feds follow Mar-A-Lago search—but action was 'unavoidable'

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Nathan Abse interviews Kenneth Warren on the implications for feds of the FBI's search of Mar-a-Lago, as mandated in a warrant seeking the return of classified and other documents—and the intense backlash from former president Trump and his MAGA movement. Warren is a civil service expert and professor of public administration at Saint Louis University.

In the days since the FBI executed a search warrant at former president Trump’s home in Florida, there has been a shocking escalation of political tension in Congress and across much of the country—between those who support him and his “MAGA” movement and those who do not. There also has been a sharp spike in online abuse and threats of violence against federal employees, especially the FBI, coming from the movement’s adherents—with Trump telegraphing decidedly mixed signals on whether his backers should stand down from heated rhetoric and sometimes armed marches. The search itself took place on Monday, Aug. 8, at Mar-a-Lago in Palm Beach—an unprecedentedly aggressive and dramatic action that stands out among the many investigations of the forty-fifth president. Agents seized multiple boxes of documents and other items, some reportedly involving nuclear secrets—items at the top tier of restricted access, justifying for many experts the intrusive nature of the event and for its urgency. Finally, the since-released search warrant document—signed by a federal judge and reportedly cleared by Attorney General Merrick Garland himself—confirms a high level of legal peril for the former president. It cites several federal laws indicating probable cause they were violated—including prohibitions against espionage (the Espionage Act), obstruction of justice, and removing/destroying documents. This week, Nathan Abse interviews Prof. Kenneth Warren, a political scientist and administrative law expert at Saint Louis University. They discuss the Mar-a-Lago probe—and the high-stakes legal and political disputes now in play, and their implications for the future of the federal workforce and the country.

Q&A with Kenneth Warren

As a political scientist and expert on laws that govern federal agencies, what can you tell our readers about the Mar-a-Lago search—and what it means just ahead for the former president?

Warren: First of all, in 2018 former President Trump actually signed one of the laws now bearing down on him [revisions to the Foreign Intelligence Surveillance Act], in connection with the Mar-a-Lago search. At the time, Trump was enthusiastic about amping up punishments for security breaches—it helped him to re-ignite bad publicity for Hillary Clinton on her mishandling of official e-mail. About his support for this law, you could even call it the “Get Hillary Act,” you know? It’s an irony that it could be used to hold him accountable now. There are other statutes that might be invoked—the laws listed in the warrant, as well as the Presidential Records Act, which says like other presidents he was supposed to obey the laws regarding government documents and certainly not take away presidential records.

Yes. Some legal experts say certain laws in play in the Mar-a-Lago search could be used to bar Trump from running for federal office ever again—right?

Warren: Yes, that’s true some are saying that. But I think that opinion is inaccurate. Even if Trump were prosecuted under any of these laws, legally speaking he could still run for office. Why? Because the qualifications for running for president are minimal and very clear—and defined in the Constitution. That any of those statutes could prevail over the Constitution is a very dubious proposition. Frankly, if anyone tried to stop his running on that basis, their effort would easily be overruled by the Supreme Court. An act of Congress cannot undo something explicitly defined in the Constitution. The Constitution is supreme. It’s also explicit: A viable presidential candidate must only be 35, a natural born citizen of the United States and resident in the U.S. for 14 years, period. So, again, I think theorizing about blocking Trump from a presidential run on these grounds is just “piling on” after the search, and a fantasy.

So, you’re certain federal statutes can’t prevent his future candidacy? Can you go deeper here?

Warren: It’s a non-starter. Any such attempt to bar him from running for president again would be challenged in court—and that challenge would be successful. Even if he were convicted of violating statutes cited in the Mar-a-Lago search and wound up in prison—very unlikely—he could still run for office. I am reminded of James Michael Curley, who famously ran for mayor of Boston from jail.

What’s do you predict as the wider fallout from the FBI search, for Trump and for the country?   

Warren: This is too speculative an area to make reasonable predictions on, at least at this time. I hesitate to comment. But, I will say for the country, we all just learned that AG Merrick Garland is methodical and appears to be working away steadily on possibly bringing charges. I’ll go further, and say that for Trump, the search at Mar-a-Lago indicates real problems ahead. Why? Because I don’t think for a minute that this AG—Garland—would back a warrant unless he had some serious goods on Trump. More than the public knows, right now.

Why would Trump take—and moreover keep—secret federal documents after leaving office?

Warren: Again, I’m speculating. It’s an unknown. But this concerns me because I don’t think Trump would take these kind of documents, as it appears he did, without an agenda. Why would he want to do that? It makes your mind go to really scary places. I think there was a purpose. Remember, this is a president who came close to pulling off a coup in 2021, and who has long made it clear he feels close to dictators. You have to wonder if, you know, he had hoped to use these documents too as part of some nefarious plan.   

Were the procedures used by the FBI here—as far as we know—unusual at all?

Warren: No. In some ways, it’s pretty simple. The usual procedure—when someone doesn't produce high-level national security documents (whether classified or not classified)—is what federal authorities did at Mar-a-Lago. On the government end, first you request and then subpoena. And if you still don’t get compliance, you obtain a warrant and get the documents and sensitive materials. You worry about prosecuting—or not—later. So, to me, the procedure here doesn’t appear unusual. Except that it was directed at a former president!

But the former president says they were not normal tactics—as in “gestapo” tactics, right?

Warren: Yes. But these are absolutely are normal procedures, if someone doesn’t comply!  Trump and his people are using excuses—most strikingly “Trump already declassified those documents.” That isn’t at all clear here, or even that it’s possible! Anyway, his people are claiming this—that there should have been no “raid,” because the material was already declassified and other quickly changing legal arguments. Your readers have to remember: Trump was subpoenaed for a reason, to find and recover sensitive documents that had been taken from the White House. Why the “raid”? Because despite previous efforts by the National Archives and authorities, the documents were not returned. By the way, now we see in the news that Trump’s lawyer had told authorities everything had been returned—but that wasn’t true! No wonder they finally just went in.

What about Trump’s “procedures,” claiming presidential power as his pre-emptive defense: That he broke no laws, since everything he removed was automatically dubbed “unclassified”?  

Warren: Specifically, Trump and his people now say he made a “standing order” to “declassify” any documents he felt like taking. In my analysis, this argument doesn’t hold water. Think about it. Other politicians have claimed this word, but Trump truly is “rogue.” That is, he doesn’t follow law or protocol. He does what he wants. That’s what happened with the documents.

Two basic images emerge in the Mar-a-Lago search: Federal agencies asserting their legal authority over the people’s documents from the Office of the President—and the ever-defiant Trump asserting his own almost kingly authority. How does this struggle affect feds?

Warren: When Trump was president, for many feds his attacks on government employees and normal procedures was very disconcerting. In many cases, it discouraged pushing back. But he’s not president anymore—and not so many feds fear him anymore. Like me I think they doubt whether he will ever be president ever again. In short, the “fear factor” many had of Trump is now dissipating. I think that’s true also at agencies working against [domestic] terrorism and spying—and the Justice Department, and the FBI. They are going to do what they need to do, regardless of the threats from his supporters. I think that’s what they did here, at Mar-a-Lago.

So you say feds won’t kowtow to Trump’s scare tactics, especially as he’s out of office. But here —searching his castle, though a legal recovery of documents—presents dangers and stirs up violent threats. Doesn’t that affect feds?

Warren: Yes. And it’s unavoidable. Already there are opinion pieces that Garland shouldn’t have allowed this, since it riles up violent threats. Look, the country is not going to be saved if we bow to the threats. We have to enforce the law here. Our government and our society are rooted in the rule of law, right? Whether you're president or anyone else, you have to obey the law and authorities have to enforce the law. Leaders have to be willing to pay the price for the backlash.

But the political schism that is going on here—it could get worse, like Jan. 6, right?

Warren: Right. And we hope it doesn’t. But if it does, past a point it may mean, you know, it is possible that you might be talking about using federal troops at some point. That’s happened in the past. Yes, it could get much worse than anything we’ve seen in decades. Much worse than just a riot here or there. But what the hell, you know, the United States military is certainly capable of putting down a real insurrection, a major rebellion. And I think, by the way, many in MAGA world will be thinking twice about what they're doing, given some of the sentences now that are being handed down to the people who attacked the Capitol.

Some of Trump’s supporters are tying in their allegations of DOJ and FBI overreach to the plan to hire over 80,000 new IRS personnel, to grow back the agency—your comment?

Warren: The IRS had shrunk too much, and is too lean right now. It is not corrupt. Some accountants I’ve spoken with complain that these days the IRS takes forever to respond to questions. But they know the agency is just swamped, and so it's not functioning very well. There's a big difference between being sluggish and underperforming because of a lack of staff, versus being corrupt. The  arguments against increasing hiring at IRS because they will be going after everyone or will be a political tool are unfounded. The agency is not going after one party or the other. We’ve come a very long way since scandals of decades ago.

What do these events mean for feds—the Mar-a-Lago search and Trump’s increasingly likely next run?

Warren: I think feds feel much better now after Trump’s term is done. I think his take on the FBI and other agencies at Mar-a-Lago should strengthen that. I believe that federal employees, feel much better under this administration than under Trump’s. There’s the way Trump puts down the FBI after the search at Mar-a-Lago, sure. But worse there is also his big threat to get rid of the civil service system as we know it, as we saw in his Executive Order and is plan for “Schedule F.” Biden, on the other hand, has done everything to promote and protect the federal civil service system. Trump wants to go back to a nineteenth century patronage system! You know, if you poll people about the “federal bureaucracy” they’re not very kind. But if you ask about individual agencies most of them poll very favorably. Federal agencies still have a good reputation with most Americans.

NEXT STORY: Burn pit aid: Feds salute PACT Act

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