Tl;dr

I used both consent and search warrants dozens of times over the course of my career to recover classified govt info - but never a subpoena. Let’s talk subpoenas and why they’re not used to recover classified material from those not authorized to have it.

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— Peter Strzok (@petestrzok) August 10, 2022

So we’ll start here.

Someone not authorized to possess it, in this thread, refers to former President Trump. Presidents to not “get” security clearances. They gain access to classified info by virtue of their election, and are the USG’s ultimate classification (and declassification) authority.

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— Peter Strzok (@petestrzok) August 10, 2022

At least 3 reasons make a subpoena inappropriate to recover classified docs. First, classified documents are the property of the USG. In the hands of an unauthorized person, they are contraband. Imagine using a subpoena to demand the return of $10k stolen by a bank robber.

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— Peter Strzok (@petestrzok) August 10, 2022

Second, by definition, the disclosure of classified information could reasonably be expected to cause damage to national security. A subpoena does not limit the receiving party’s use additional people (attorneys, clerks, mail rooms) to fulfill the production.

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— Peter Strzok (@petestrzok) August 10, 2022

Additionally, a similar argument might apply to the speed of the government’s action: you say these documents are so terribly sensitive? Then why did you wait a year to come and get them when you believed they were in an unauthorized place?https://t.co/nxTP7IKRuh

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— Peter Strzok (@petestrzok) August 10, 2022

Okay, now we turn to Popehat, a former AUSA and now a defense lawyer.

This report is very interesting. We've seen some speculation that the feds executed the warrant because that's the only way they can get classified documents back if the holder refuses, which made me skeptical. But this is different....

/1https://t.co/vlKtjjqjMN

— InvokeTheHat (@Popehat) August 10, 2022

/3 . . . . under these extreme circumstances I think they'd say so (actually I think they would have used other measures and public pressure first). If, on the other hand, there's a live grand jury that's going to consider the search results, they wouldn't say anything.

— InvokeTheHat (@Popehat) August 10, 2022

/5 But this report would be consistent with one line of messaging from the Trump camp, through Kash Patel, who is floating the "oh President Trump declassified all of that stuff before leaving office we just didn't note it down" defense.

— InvokeTheHat (@Popehat) August 10, 2022

/7 But at any rate I think the reaction to the search has demonstrated that no matter what the truth is, the GOP has decided to go full on MY LIFE FOR YOU and will adapt any narrative necessary to reject, deny, or minimize any case, no matter what filth-wallowing that requires.

— InvokeTheHat (@Popehat) August 10, 2022

The current story is someone in June told the FBI (or National Archives, or somebody!) that there were more boxes than the 15 Trump gave up earlier.

This makes it all make sense, because how would anyone outside Trump’s circle know? I mean, in government now. It also explains the search warrant because how else do the Feds find what Trump is hiding/lying about? (They’ve been in discussions for a year.) That crime could be enough alone for the affidavit.

It probably wasn’t, but it’s certainly a starting point.

As Strzok points out, this stuff was government property, classified or not. There are reports Trump held on to letters from Kim Jong Un and the traditional letter from Obama when Trump took office. Probably not classified stuff, but not his to take. In that case a search warrant seems extreme, but as Strzok points out again, how else do they do this, especially since they learn Trump is lying about what he has?

Is the DOJ keeping quiet because they have a grand jury to feed? Or is it because they don’t want to feed Trump’s media beast? (On MSNBC this morning even the “liberal” host was quoting the “Of course you know, this means war!” attendant at lunch with Trump, who breathlessly said Trump has not yet begun to fight! This was reported as if it was news and important, rather than the empty blather Trump trades in. Why should the DOJ enter that fray?)

And if the material was as sensitive as some reports say it was, what grand jury would have clearance to see it? Besides, what’s the upside of a long court fight over such a small issue? I like the possibility of sedition charges better.

The motive for hanging on to highly classified documents has to be seen in the context that Trump doesn’t read, has no interest in policy, is interested only in himself and is focused only on protecting or enriching himself.

— David Rothkopf (@djrothkopf) August 10, 2022

That doesn’t make it more likely he’ll face criminal charges for those boxes, but it certainly rings true.