Watergate 'in reverse'? Historians and legal analysts pan Trump's claims and point to legal peril ahead

·7 min read

WASHINGTON – Former President Donald Trump decried the "weaponization of the Justice Department" after the unprecedented FBI search of his Mar-a-Lago home in Palm Beach, Florida, on Monday as part of a federal investigation into allegations he illegally removed classified documents from the White House.

He compared the search – which happened to fall on the 48th anniversary of President Richard Nixon's resignation – to the 1972 break-in of the Democratic National Committee headquarters at the Watergate Hotel.

"Here, in reverse, Democrats broke into the home of the 45th President of the United States," Trump said in a statement.

But historians, legal analysts and former FBI officials said the reframing of the FBI action as a political attack is inaccurate – and ignores the potentially significant legal peril the former president is facing.

“The burden of proof to execute a warrant like this would be, for all intents and purposes, unprecedented in the history of Department of Justice,” said Garrett Graff, a historian and author of “Watergate: A New History.”

Under the law, any search would need to be authorized by a federal judge after finding probable cause that a crime had been committed and that evidence of the crime exists in the location to be searched.

Trump himself confirmed that FBI agents opened a safe at Mar-a-Lago as part of the court-approved search.

Experts: Mar-a-Lago search indicates robust investigation

Brandon Van Grack, a former senior Justice Department lawyer and prosecutor, said the FBI search indicates that there has been a significant investigation well underway into possible criminal violations by Trump and ample evidence of wrongdoing.

Mishandling of classified information, specifically statute 18 U.S. Code 1924, carries a maximum penalty of five years in prison and has been used to prosecute former government officials, Van Grack told USA TODAY.

"The fact that they obtained a search warrant and knew what to look for suggests that the FBI has conducted numerous interviews. Which is all to say that there is a very real risk of criminal charges” for Trump, said Van Grack, who was a key member of special counsel and former FBI Director Robert Mueller's investigation into possible collusion by Russia and the Trump campaign in the 2016 presidential election.

Opinion: Why the FBI searching Trump's Mar-a-Lago home may be a sign of things to come

Former federal prosecutor Neama Rahmani said Trump also could be facing significant criminal exposure if he mishandled or destroy government records.

The most likely charge that would apply in that case, he said, would be Title 18, U.S. Code 2071, which involves concealment or destruction of U.S. government documents. That carries a maximum sentence of three years in prison and, if he were convicted, could bar Trump from ever holding elective office again.

In photos: FBI search Donald Trump’s Mar-a-Lago home in Florida

McCarthy casts search as political, calls out Garland

Republicans immediately slammed the FBI's search as political retaliation from the Biden administration, even as the details remained unclear.

House Minority Leader Kevin McCarthy, in a tweet referencing Attorney General Merrick Garland, vowed to conduct "immediate oversight of this department" if Republicans regain control of Congress and "leave no stone unturned."

"Attorney General Garland, preserve your documents and clear your calendar," McCarthy said.

'Defund the FBI': Trump supporters react to Mar-a-Lago search

For the Justice Department to authorize such a politically sensitive operation, Garland and FBI leadership would have almost certainly signed off on it, Graff said.

The search suggests an investigation is far along, he said, and added that he would not be surprised if the Justice Department had already determined it had enough evidence to charge Trump with a crime before agents initiated it.

“The idea that they proceeded to a search warrant is a remarkable testament, both to the state of the investigation but also the level of cooperation that they believed that they would get from the target,” Graff said.

That’s in striking contrast to the Watergate investigation, in which the FBI and special prosecutor negotiated with the Nixon White House attorneys to provide documents.

“That is clearly not the case here,” Graff said.

Just the basics: What's happening at Trump's Mar-A-Lago home? Was the FBI there? Answers to your questions

The entrance to former President Donald Trump's Mar-a-Lago estate is shown Monday, Aug. 8, 2022, in Palm Beach, Fla. Trump said in a lengthy statement that the FBI was conducting a search of his Mar-a-Lago estate and asserted that agents had broken open a safe.
The entrance to former President Donald Trump's Mar-a-Lago estate is shown Monday, Aug. 8, 2022, in Palm Beach, Fla. Trump said in a lengthy statement that the FBI was conducting a search of his Mar-a-Lago estate and asserted that agents had broken open a safe.

Nor should this have been unexpected, said former FBI Deputy Director Andrew McCabe, given the large number of criminal investigations into Trump.

"It's hugely significant, but also, I think, predictable to a certain degree," McCabe said. "I think it's foreseeable in that way, it's totally shocking in the context of like, I don't believe this has ever happened before."

McCabe agreed that the search would have been a major deal within the Justice Department and FBI before its execution.

"This is not, you know, a couple of agents showing up at some judge’s door in the middle of the night to get an emergency warrant," he told CNN. "This is something that would have been planned out and reevaluated and legally examined from every possible angle by the entirety of the leadership structure (of) both organizations."

The whole story: Trump Mar-A-Lago home in Florida searched by FBI in probe into handling of classified documents

Former Trump press secretary recalls other lapses

Former White House officials under Trump also pushed back at Trump's characterization of the search as being politically motivated.

Stephanie Grisham, one of Trump's former press secretaries, said Trump was careless and haphazard about handling classified documents – and when talking about classified information. Either he had no clue, she told USA TODAY, or didn’t care, even though she said it posed a potential national security threat.

Grisham said she was worried about Trump’s talking about classified information and operations, citing the now-infamous dinner at Mar-a-Lago with Japanese Prime Minister Shinzo Abe.

“They were being briefed about the missiles in North Korea, and documents were being handed to him and all these people at Mar-a-Lago were posting it to Facebook,” she said.

“There’s a lot I'm not going to say because I don't want to jeopardize national security,” she said. But she said she was troubled by another apparent lapse during a photo op with Trump at the U.S.-Mexico border.

“I was standing with him, and he started immediately detailing a bunch of the technology advancements we had started (to counter border incursions) and had to be stopped. We had to step forward and be like, “Hey, sir.’ “

Grisham also said Trump improperly talked to Philippine President Rodrigo Duterte about how many nuclear submarines the U.S. had in Korean waters in 2017. “And certainly, when he did the announcement of the killing of (ISIS leader) al-Baghdadi, he made many comments that were highly classified, or just really tactically sensitive. I’ve seen him do it over and over and over again.”

On the document front, she said, there are two ways in which what Trump could have broken the law. One is the mishandling of classified information. “I saw him mishandle presidential records” a lot, she said.

The other potential legal liability, she said, was in destroying public records and breaking the law with the Presidential Records Act.

'It's unprecedented'

Van Grack, the former Justice Department official, said there is “still a very high hurdle” to criminally prosecuting a former president for violating Section 1924, because it requires that the removal of classified information occur “without authority,” and the president of the United States would have had that authority.

The search was "stunning," said Matthew Dallek, a longtime presidential historian who has written extensively on modern-era politics and presidents.

"As with everything else with Trump, it's unprecedented,"

Contributing: Francesca Chambers

Reach Joey Garrison on Twitter @joeygarrison and Josh Meyer at @JoshMeyerDC.

This article originally appeared on USA TODAY: Trump compares FBI search to Watergate; experts say that is inaccurate