When it comes to the FBI’s search of Donald Trump’s Mar-a-Lago residence, we are reading tea leaves and probably will be for some time.
A large gap exists between what is legally possible here and what seems likely. Although it would be legally defensible to execute such a search based on the wrongful removal of government documents or on the need to retrieve and protect routine classified information, it’s hard to imagine that the purpose of this search was confined to that.
This is an unprecedented move. It’s not just a search warrant executed against a former president, though that in and of itself would be extraordinary. It’s also been done against a man widely seen as the de facto leader of the Republican Party and as a possible comeback candidate for president. As such, Trump is viewed as a rival to incumbent Joe Biden, whose Justice Department executed this search. Those realities make this situation a political tinderbox.
The high stakes here suggest this search has to be about something much larger than a dispute about what is or isn’t classified, or government impatience with efforts to retrieve those documents, or concerns about the storage of that material.
One big reason for that assumption: We know Attorney General Merrick Garland as a temperate, methodical, by-the-book public official. As a former prosecutor and judge, he understands that any action the Department of Justice takes must be seen as fair, justified, and proportionate. So should everyone else involved, from FBI Director Christopher Wray, whom Trump appointed, to the legal staff who prepared the search warrant application to the federal judge who authorized the search.
Some prominent TV speculation has centered around the fact that federal law stipulates that if one is convicted of removing, concealing, or destroying government documents, he or she can ostensibly be forbidden from holding federal office again. Thus some see this as a way for the Biden administration to conveniently remove a potent prospective political opponent.
Eric Trump, son of the former president, was on TV Monday evening with Sean Hannity, peddling that basic storyline: This search was done at the White House’s behest and was simply political persecution aimed at preventing Trump from running for president again. Trump, of course, is already trying to make himself a martyr, which should come as no surprise, since it is his rote response to virtually any action he is averse to.
As assumptions go, however, those fall into the category of highly unlikely. First, such action would not just look overtly political, it would qualify as such. Second, there’s a very real possibility that the law’s disqualification from holding public office would prove to be unconstitutional. Third, this search warrant had to be approved by a federal judge — and no judge worthy of the title would sign off on such a warrant absent a strong sense such a search was justified. Finally, Garland knows better than to have tipped off President Biden that this was coming, much less to have done it at his direction. The first would be a political mistake. The second would be an enormous abuse of power.
So either Garland’s reputation is entirely misplaced or the documents in question are evidence of an offense much beyond that of their unauthorized removal. That is, some evidence of a larger crime against the country, or the mishandling of classified information that, if obtained by other nations, could endanger this country’s security.
The worst possible scenario here, obviously, would be for the Department of Justice to indict and try Trump, only to see a jury acquit him. That could happen if any eventual prosecution looks either political or picayune. Perhaps the second worst outcome would be for such a search to have been executed without subsequent developments that justify it in the public mind.
Everyone realizes that such a decision will be put under the microscope. As if to underscore that point, House minority leader Kevin McCarthy made it clear by tweet on Monday that if the GOP retakes the House in November, Republicans will hold extensive hearings on this decision.
All of which suggests this conclusion: This search of the ex-president’s home bespeaks something truly big — something that will, when revealed, cut through the partisan fog and leave Americans in agreement that the circumstances justified this unparalleled action.
If not, Merrick Garland’s reputation as a judicious, measured, and meticulous prosecutor may be headed for a damaging revision.