It’s been a terrible, horrible, no good, very bad week for Donald Trump since the FBI swooped down on Mar-a-Lago to remove several troves of highly classified documents. Among the documents found were some of the most sensitive classified information in American intelligence, as well as information related to nuclear weapons. Since then, the Department of Justice has revealed that Trump is the target of a multi-pronged criminal investigation into, among other things, potential violations of the Espionage Act.
Given the stakes, it’s pretty obvious that the warrant for that search wouldn’t have been greenlit by Attorney General Merrick Garland or federal magistrate Judge Bruce Reinhart on just probable cause. Over the weekend, Fox News White House correspondent Jacqui Heinrich offered a very credible suggestion as to what that probable cause might have been. According to her sources, it’s “very likely” that the source was a member of Trump’s Secret Service detail.
Heinrich dropped this theory on Friday morning.
I remembered reading last year that even some of Trump’s biggest gadflies hoped that Trump could be nailed to the wall without having to call members of his Secret Service detail as witnesses (diaried here). According to retired agent Jim Funk, when courts ruled that Secret Service agents could be compelled to testify against sitting presidents, it created a “slippery slope” because the very nature of their job requires them to be “close to the president in some capacity.”
But if there were ever a case for an exception to that concern, it is when an agent learns that a current or former president is engaging in blatantly criminal and treasonous conduct. In that case, they would be doubly obligated to report it. Besides the general legal obligation to report observations of criminal conduct, Secret Service agents are sworn to defend the Constitution “against all enemies, foreign and domestic.”
The closest parallel I can think of is the reluctance of doctors to testify in malpractice cases. One of the few exceptions to that principle came during the saga of Christopher Duntsch, the Dallas neurosurgeon who killed two patients and maimed 31 others in less than two years before his license was revoked. He was ultimately convicted of maiming one of them, Mary Efurd, and was sentenced to life in prison. The prosecutor who led that case, Michelle Shughart, told CNBC’s American Greed that she was surprised when several of the surgeons who had been responsible for exposing Duntsch’s misdeeds lined up demanding to testify against him. This took Shughart by surprise, since in her experience doctors almost never testified against each other.
However, Duntsch’s pursuers apparently felt that Duntsch’s actions were so egregious that they more than met the threshold for an exception to that rule. One of them, Randall Kirby, even went as far as to call Dunstch a “sociopath” in a letter to the Texas Medical Board. He and Duntsch’s other lead pursuer, Robert Henderson, actually went to prosecutors because they believed jailing him was the only way to keep Duntsch from practicing medicine elsewhere after Texas revoked his license.
This would appear to be no different. On the face of it, we are looking at one of the worst security breaches in American history, if not the worst. That more than overshadows any concerns about a slippery slope being triggered by a Secret Service agent testifying against a current or former president. To my mind, that would more than meet the threshold of “beyond probable cause.”
Heinrich is one of the few outposts of serious journalism at Fox News. She’s even fact-checked right-wingers—including some at her own network—who are wringing their hands over the IRS being greenlighted to hire more agents.
If her reporting is accurate and a Secret Service agent was the likely trigger for the search on Mar-a-Lago, that agent may very well have saved the republic.