Trump, Mar-a-Lago and the Fifth Amendment: A federal prosecutor's five big takeaways

As a former DOJ prosecutor, I see multiple ironies at work — and clear indications that Trump is in legal jeopardy

Published August 11, 2022 5:30AM (EDT)

Former President Donald Trump speaks on May 28, 2022 in Casper, Wyoming. (Chet Strange/Getty Images)
Former President Donald Trump speaks on May 28, 2022 in Casper, Wyoming. (Chet Strange/Getty Images)

Wednesday's breaking news was that the FBI had an inside informant at Mar-a-Lago, who reportedly told them that Donald Trump was hiding classified documents there. On the same day in New York, Trump invoked his Fifth Amendment rights in state Attorney General Letitia James' civil investigation of the Trump Organization. These are only two of the multiple investigations that have Trump or his family business in their crosshairs. 

Here are a former federal prosecutor's takeaways from this week's investigation-related news so far.

First, for those who cherish the rule of law, it may seem hard to avoid schadenfreude when Trump, after relentlessly assaulting the Constitution, takes full personal advantage of its protection. That's exactly what he did on Aug. 10 in New York while invoking his right against self-incrimination.

It may be difficult to avoid schadenfreude when Trump, after relentlessly assaulting the Constitution, takes full personal advantage of its protection against self-incrimination.

The ironies are multiple, including this one: Trump learned his take-no-prisoners approach to life and litigation from the virulent Roy Cohn, Sen. Joe McCarthy's chief inquisitor in his demagogic 1950s Senate hearings on communists in America. Innocent people had to assert their right against self-incrimination for fear of their testimony being used against them in the days of red-baiting paranoia. Now it is Cohn's student who takes the Fifth.

I can say from experience that the Justice Department reinforces what its prosecutors learned in law school — to revere the right against self-incrimination. The chief lesson of the 16th-century Spanish Inquisition was that before depriving citizens of liberty, the government must be required to prove guilt — and without the help of suspects if they decline to give it.

Even centuries before that, in 1215, the Magna Carta protected English citizens from harm at the hands of monarchs by establishing due process of law, of which the right against self-incrimination is a part. So, six years after Trump attacked Hillary Clinton's aides for invoking that right in the infamous investigation of her emails, let's appreciate the opportunity that Trump's invocation provides for educating the American public, including the twice-impeached ex-president's most fervent supporters, about the constitutional right to remain silent.

Second, consider the dangerous and hypocritical attacks on law enforcement by Trump defenders who hold elected office. Rep. Marjorie Taylor Greene, R-Ga., tweeted "Defund the FBI!" Sen. Marco Rubio, R-Fla., referred to the warrant-based search as sponsored by "Marxists," quite likely in an attempt to fire up his voter base among anti-communist Cuban Americans as he runs for re-election.

Those attacks are flashing red lights for our society's stability and security. Endangering them is the inevitable and entirely predictable effect of undermining public trust in law enforcement officials who show no fear, favor or partiality to the powerful. Without such trust, we have neither law nor order. No one is safe in a state of anarchy — or an autocracy. 

As for hypocrisy, there is no principled way to demand that the Justice Department investigate Hunter Biden, as Republicans continue to do, and simultaneously to attack the DOJ's independently validated search of Trump's home. To obtain a search warrant for Trump's premises at Mar-a-Lago, federal prosecutors clearly satisfied a federal magistrate that evidence existed that the former president had committed a crime that justified the intrusion.

Third, those who charge that Attorney General Merrick Garland was acting out of political partisanship must consider two things: These headlines overshadowed President Biden's victory lap for his big win in Congress on a landmark bill addressing both the climate crisis and health care. He was just as blindsided by Garland's search as the rest of us, and can't be happy about seeing his moment of triumph upstaged. The White House clearly meant for Wednesday morning's news of legislative successes to be a major turning point for Democratic prospects in the midterms.

At the same time, Biden got exactly what he sought when he named Garland his AG: A chief legal officer who would not consult him and who would put his head down and do his job, independent of politics.

In addition, the Mar-a-Lago search, according to Sen. Lindsey Graham and other Republicans, made Trump even more determined to run for the 2024 Republican nomination. They claim that Garland's historic decision to execute a search warrant against a former president has energized Trump and the Republican base to get out and vote in the midterms.

No one who has been in Washington as long as Garland would have missed the possibility of such reactions — and that had no evident effect on his duty to the Constitution.

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

Fourth, while the search warrant required a showing of probable cause that a crime had been committed, as a practical matter, the federal magistrate judge who issued the warrant, Bruce Reinhart, almost surely applied a far higher standard of proof.

The target here was no ordinary public official, but rather a former president of the United States. Reinhart understood that the validity of the warrant would surely become public at some point and receive microscopic scrutiny in the media. It will also be reviewed by a district court judge, should Trump be indicted and should the prosecution seek to offer evidence from the search at trial.

No magistrate judge wants to be professionally embarrassed in a high-visibility case. Reinhart surely required the FBI's warrant application to meet the most exacting standards.

Because no magistrate judge wants to be reversed or professionally embarrassed, especially in a high-visibility case, Reinhart would have required the FBI's warrant application to meet the most exacting standards before he approved it. The Aug. 10 report that the FBI had a source for its warrant inside Mar-a-Lago suggests that this judge, a veteran prosecutor with experience in matters of public corruption and then as a criminal defense lawyer, was on extremely solid ground authorizing the search. 

Fifth, Garland will not want to become the next Jim Comey as he considers whether to respond to Republican pressure to justify publicly the Justice Department's probe of Trump. Comey came under intense public fire, and justifiably so, for acting contrary to Justice Department norms about not discussing or releasing information about pending investigations during an election season. Comey's bungled handling of the 2016 investigation of Hilary Clinton's emails may well have affected the outcome of that year's presidential election, and the course of American history.

Trump, however, faces no similar constraints about releasing the nonclassified items on the FBI's requisite inventory of what evidence agents collected in the search, a copy of which was left on the premises. If, as Trump claims, the search was purely politically motivated, making that inventory public would serve the public interest in holding the DOJ and FBI accountable.

The longer Trump fails to do so, the stronger two inferences become. First, that his protests about the Mar-a-Lago search are just one more false cry of victimhood. And second, that his future may well hold another opportunity to exercise his Fifth Amendment rights, this one not coming in a civil case but in a criminal one.   

By Dennis Aftergut

Dennis Aftergut, a former federal prosecutor, is currently of counsel to Lawyers Defending American Democracy.

MORE FROM Dennis Aftergut