A former president's right under the Presidential Records Act trumps the statutes the FBI cited to justify the Mar-a-Lago search, David Rivkin Jr. and Lee Casey argued in an opinion piece in The Wall Street Journal on Tuesday.
The two constitutional lawyers, who served at the Department of Justice and the White House Counsel's Office in the Reagan and George H.W. Bush administrations, stressed that the warrant used to search former President Donald Trump's residence suggests that ''the FBI had no legally valid cause for the raid.''
This is because Trump's possession of the documents at his residence is entirely consistent with federal law that gives former presidents access to them, regardless of the statutes the FBI uses as justification in its warrant.
The authors emphasized that nothing in the PRA of 1978 suggests that the former president's physical custody of his records can be considered unlawful under the statutes on which the Mar-a-Lago warrant is based.
Rivkin and Casey explained that ''in making a former president's records available to him, the PRA doesn't distinguish between materials that are and aren't classified. That was a deliberate choice by Congress, as the existence of highly classified materials at the White House was a given long before 1978, and the statute specifically contemplates that classified materials will be present — making this a basis on which a president can impose a 12-year moratorium on public access.''
The authors also argue that since the FBI was initially satisfied with the installation of an additional lock on the relevant Mar-a-Lago storage room, if that turned out to be insufficient, and ''Trump refused to cooperate, the bureau could and should have sought a less intrusive judicial remedy than a search warrant — a restraining order allowing the materials to be moved to a location with the proper storage facilities, but also ensuring Mr. Trump continuing access."
Rivkin and Casey added that ''surely that's what the government would have done if any other former president were involved.''
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