DOJ needs to clarify its intentions
On Monday evening news broke that the FBI searched the Florida home of Donald Trump, the former president. In fact, Trump himself informed the world, calling it a “raid” and an “assault.”
While both words are colloquially defensible, it wasn’t some Eliot Ness-style breach with a battering ram or sledgehammer. The FBI called the Secret Service in advance and was let in. But that wasn’t the image Trump and his echo chamber wanted people to have in mind. His statement begins, “These are dark times for our Nation, as my beautiful home, Mar-A-Lago in Palm Beach, Florida, is currently under siege, raided, and occupied by a large group of FBI agents.”
According to various accounts, including from his son Eric, the warrant was to find classified materials the former president took with him, allegedly in violation of the Presidential Records Act. The National Archives had been in negotiations with Trump’s lawyers for a long time in an effort to retrieve documents they say Trump improperly took.
Rather than proceed with those negotiations, the FBI obtained a warrant from a judge.
I’d say “these are the facts,” but initial reports are often wrong, so it’s probably safer to just say all of this is undisputed. Notably, nobody publicly commenting on the raid even knows the contents of the search warrant — except Trump, and he’s not talking about that. The Department of Justice, as a matter of policy, is not commenting on the case.
Legal experts on both sides of the political divide insist that such warrants in normal cases require a high degree of evidence and proof of probable cause that a crime has been committed. This, of course, is not a normal case. Trump is correct when he says, “Nothing like this has ever happened to a President of the United States before.” It is reasonable to assume that the Department of Justice, including Attorney General Merrick Garland, considered and examined their warrant application with great care given the political stakes.
For some political commentators and politicians hostile to Trump, this supposition is proof that the department must have a very good reason to seek a search warrant. If all the FBI — which is currently led by a Trump appointee — is looking for are some letters and other mementos, it would be crazy to do something so politically incendiary.
For other political commentators and politicians supportive of Trump, the extraordinary nature of the raid is proof that the Biden administration or the Department of Justice is persecuting Donald Trump as part of a political “witch hunt.”
“I’ve seen enough. The Department of Justice has reached an intolerable state of weaponized politicization,” House Republican leader Kevin McCarthy of California said. “When Republicans take back the House, we will conduct immediate oversight of this department, follow the facts and leave no stone unturned.”
Such statements are a bit hard to take from McCarthy, who once boasted that Republican investigation into Hillary Clinton’s role in the Benghazi terrorist attack was justified because it hurt her poll numbers.
Still, Garland had to know that he would be inviting exactly this kind of firestorm with partisans on both sides rushing to confirm their biases.
This battle of confirmation biases amounts to a fascinating political Rorschach test. The GOP House Judiciary Committee tweeted, “If they can do it to a former President, imagine what they can do to you.” But that’s the point, others argue. “They” can do the same thing to you. The FBI lawfully searches homes every day. If former presidents aren’t above the law, then there shouldn’t be a higher or different standard for them.
Rather than prove that America is behaving like a “corrupt” “third world country,” as Trump and his defenders claim, the FBI’s defenders argue that holding a former president accountable to the law just like everyone else proves we’re the opposite of a banana republic.
I think they are right in theory, but wrong in practice. The very argument that Garland must have taken extra-special care before proceeding demonstrates that we do, in fact, have different standards for former presidents. We have even stricter standards for sitting presidents, which is why the DOJ has a rule that a president cannot be indicted while in office.
Under normal circumstances, it’s a good standard that the Department of Justice does not comment on ongoing investigations. But this is an extraordinary situation that requires extraordinary measures. The FBI search is now a very public fact, and its significance is not lost on anyone. Its meaning, however, in the absence of authoritative explanation, is open to manipulation and exploitation, both by partisan defenders of Trump eager to delegitimize an investigation and by critics determined to raise expectations unsupported by the evidence.
The DOJ should release the warrant. If Garland refuses, President Joe Biden should overrule him, to calm the political waters for the good of the country.
Of course, Trump can release the warrant for the good of the country, too. But he’s already fundraising off the “witch hunt.” Interpret that Rorschach blot however you like.