FBI raid on Trump's resort isn't about classified documents — it's about the Capitol riot: legal expert
(Official White House Photo by Joyce N. Boghosian)

In an op-ed for the National Review, conservative commentator Andrew McCarthy writes that while the justification for the FBI's search of Donald Trump’s Mar-a-Lago resort is reportedly related to the former president's retention of government records and mishandling of classified information, the "real reason is the Capitol riot."

Trump said Monday that his Mar-a-Lago residence in Florida was being "raided" by FBI agents in what he called an act of "prosecutorial misconduct."

The FBI declined to comment on whether the search was happening or what it might be for, nor did Trump give any indication of why federal agents were at his home.

But multiple media outlets cited sources close to the investigation as saying that agents were conducting a court-authorized search related to the potential mishandling of classified documents that had been sent to Mar-a-Lago.

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According to McCarthy, a former assistant U.S. Attorney for the Southern District of New York, Trump's alleged violations of government records and classified information laws gave the DOJ the pretext it needed to search his resort for evidence related to the Capitol riot. But he says the search should not be described as a "raid."

"This was not a raid, in the sense of a lawless break-in. The FBI conducted a court-authorized search. For the FBI to have a search warrant, a federal prosecutor first had to write a search-warrant application, sworn to by an FBI agent, which convinced a federal judge that (a) one or more crimes probably occurred and (b) it was probable that evidence of those crimes would be found in the place the Justice Department was asking to search," McCarthy writes.

McCarthy points out that classified documents can be declassified by a sitting president -- but not after he or she is out of office. If Trump had failed to declassify the documents he allegedly took to Mar-a-Lago, then he's breaking the law. "Ergo, from the DOJ’s perspective, there was a probability that the classified documents Trump returned had for months been kept in an unauthorized place," writes McCarthy. "Moreover, because Trump did not return to the National Archives everything that was shipped to Mar-a-Lago in January 2021, he likely still has classified documents it may be unlawful for him to possess."

"As a prosecutable crime, I am betting the Biden Justice Department is not very interested in this. The DOJ is very interested, however, in the Capitol riot, and it is under intense pressure from the Democratic base to charge Trump with crimes arising out of it."

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Since taking his last Air Force One flight from Washington to Florida on January 20 last year, Trump has remained the country's most polarizing figure, continuing his unprecedented campaign to sow falsehoods that he actually won the 2020 election.

For weeks, Washington has been riveted by hearings in Congress about the January 6 storming of the Capitol by a mob of Trump supporters and his attempts to overturn the election.

The US Department of Justice is also investigating the January 6 attack.

While Attorney General Merrick Garland has declined to comment on growing speculation that Trump could face criminal charges, he has insisted that "no person is above the law" and that he intends to "hold accountable every person who is criminally responsible for trying to overturn a legitimate election."

McCarthy argues that "the Justice Department is trying to make a Capitol riot case, but Garland is not sure at this point that he has one he’s comfortable bringing. And since it would be explosive to signal that Trump is the subject of a Capitol riot investigation, the DOJ is trying to investigate him as such without saying so."

With additional reporting by AFP

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