Yesterday the FBI conducted a stunning raid on former President Donald Trump's estate in Mar-a-Lago. And last week, a lawyer for Alex Jones — the InfoWars host and staunch Trump ally who lost a huge civil trial last week regarding his mischaracterization of the Sandy Hook shooting — inadvertently disclosed a treasure trove of Jones's text messages, which may implicate him and a number of his accomplices and the Jan. 6 insurrection. Northeastern University law professor and GBH News legal analyst Daniel Medwed joined Morning Edition hosts Paris Alston and Jeremy Siegel to explain the week’s legal events. This transcript has been lightly edited.
Jeremy Siegel: Let's get down the basics of what we do know here. It's really tough to secure a federal search warrant, right? What would it have taken to get this search warrant? And what might that tell us about a potential case here?
Daniel Medwed: Well, I think it takes a lot to get a warrant, and it says a lot about the merits of this case. Here's why: First, to get a warrant under the Fourth Amendment to search someone's person, places, houses, papers or effects, you as a law enforcement official have to file an affidavit with a federal magistrate judge under penalty of perjury, where you state that you have probable cause — that it's more likely than not that there's a crime.
Second, there's something called the particularity requirement. It can't just be a fishing expedition. You can't just say, 'There's contraband on the premises.' You have to describe exactly what you're looking for and where it is. Third, even though there isn't a special rule for former presidents or for really anybody under the Fourth Amendment, as a practical political matter, if you're going to go after someone like a former president, you can be pretty sure that the FBI has more than probable cause. They have a lot of information that there was contraband at Mar-a-Lago. So I think it says a lot.
"As a practical political matter, if you're going to go after someone like a former president, you can be pretty sure that the FBI has more than probable cause."-GBH News Legal Analyst Daniel Medwed
Paris Alston: So what exactly were those agents looking for?
Medwed: According to reports, it appears as though they were looking for classified information. Now, this is a little bit of a long running saga that President Trump is alleged to have taken a lot of classified material with him when he departed from the Oval Office after the 2020 election. And in fact, earlier this year, in January or February, the National Archives retrieved, I believe, 15 boxes of information from Trump. They went out to Mar-a-Lago, they got all these boxes, and the archives later revealed — I found this really interesting — that those boxes not only contained classified information, but also information that should have been turned over pursuant to a separate law called the Presidential Records Act. So presumably the FBI has a lead that there might be more of this information down at Mar-a-Lago.
Siegel: So if this were a crime here, how serious would it be, mishandling classified information like that?
Medwed: It's quite serious. One statute says that simply disclosing classified information to an unauthorized person could get you up to 10 years in prison. Another law says that if you mishandle classified information for the purpose of thwarting or impeding a federal investigation — and that's a possibility here if they can show that that was one of the reasons why Trump took this information — you could get up to 20 years in prison. So these are serious crimes. And also, in the court of public opinion, think about the irony here. The whole 'lock her up' allegation was premised on the idea that Hillary Clinton had mishandled classified information. And now guess what? President Trump, may be — we should withhold judgment — may be on the hook for mishandling classified information.
Alston: To switch gears a little bit here, we've all heard about the Alex Jones trial and the enormous amount of damages that have been awarded to the Sandy Hook families for the harm he caused them with his lies about that shooting. Now, another aspect of that story is how his lawyer inadvertently leaked a cache of Jones's text messages, some of which may implicate him in the Jan. 6, 2021 insurrection. Now, isn't that information that would be protected by an attorney-client privilege?
Medwed: It's an interesting question. On the one hand, the attorney-client privilege only covers confidential information between an attorney and her client. So to the extent that there were confidential communications between the lawyer and Jones, in theory that could be covered. But nothing about the communications between Alex Jones and, say, Roger Stone, another staunch Trump ally, that wouldn't be covered by the attorney-client privilege. On the other hand, once you release this information, even if it was previously privileged, the cat is out of the bag. And it could be used for other purposes. This is one of the reasons and I'm sure you guys have seen this: lawyers have this little thing on their signature of an email that says, if you've received this email in error, let me know and return it to me. That's designed to deal with situations just like this. When you send that errant email and you're trying to put the cat back into the bag, which is always a really hard thing to do, virtually impossible.
Siegel: So the cat is out. Could the Jan. 6 committee use this to build a case?
Medwed: This could be used by the Jan. 6 committee. And in fact, the reports indicate that this information is already in the hands of the committee. And one can only imagine what might be in there in terms of the communications between Jones and Roger Stone, but also others.
Alston: And what about Jones's lawyer?
Medwed: You know, I think the cat's got his tongue. He won't be speaking in court very often because he probably won't have many clients after this. Jones could probably sue him for malpractice. There could also be ethics violations. But this is actually, I imagine, almost every lawyer's worst nightmare that an email, especially in such a public arena like this. But I wouldn't anticipate, again, clients flocking to that lawyer's doorstep any time soon.
