Democracy dies in an FBI raid on a former President

Earlier this week, the FBI raided the home of former President Donald Trump in action unprecedented in US history without even deigning to tell the American people what they are looking for or why.  Now, some are claiming the former President will be prosecuted for some unspecified crime, taking us from unprecedented directly to earth-shattering. Does anyone believe this ends well?

If the United States ultimately devolves into an authoritarian regime, what we might call a tyranny of the bureaucracy, future historians will debate when we past the point of no return.  Some might claim it was in the aftermath of 9-11, when the government started seizing the cell phone records of every individual in the country without any legal justification.  Others might suggest the weaponization of the Internal Revenue Service and the targeting of conservative groups.  Still others will look to the recycling of opposition research between a Presidential campaign and federal law enforcement to target an opposition candidate.  There would be some validity to these claims.  Democracies do not die overnight, and there will necessarily be dozens if not hundreds of precipitating factors.  There is no single moment, but rather a cascade that often begins without anyone truly being aware of the final outcome at the time.  At the same time, there are moments that matter, instances where everything after is different, changed forever.  Perhaps most famously, the assassination of the Austrian Archduke Ferdinand did not cause World War I.  It was not even committed by any of the major players in the war.  The underlying tensions went back decades, if not further, but there was no turning back after the heir to the Austro-Hungarian empire was killed.  It was the point of no return.

The United States might well have passed its own point of no return in the early morning hours of Monday, August 8 when the Federal Bureau of Investigation raided the home of former President Donald Trump at Mar-a-Lago, Florida.  As this morning, no official statement has been made by either the Department of Justice, the FBI, or current President Biden as to the purpose of the raid, who approved it, what specifically they were looking for, or what potential crime the former President has committed.  Media reports suggest a search warrant was issued and approved by a Federal judge to secure some 15 boxes of potentially classified material that were stored improperly at the former President’s home after his departure from the White House.  We do not know the extent of what these boxes might contain, but some sources are claiming there is a letter from former President Obama to Trump, as well as communications with North Korean dictator, Kim Jung-un.  The situation is even more confused because the former President had already turned over documents at the request of the National Archives after negotiations with his attorneys.  CNN is reporting that investigators visited Mar-a-Lago in early June, were granted access to the areas where the documents were stored, and even met personally with the former President.  According to CNN, the raid was conducted to “verify that nothing was left behind.”

We can assume that more facts will be revealed in the coming days, but in the meantime there is no doubt this move is unprecedented in US history.  No former President has ever been the subject of a search warrant or an FBI raid, not even Richard Nixon.  Further, the intrusive methods used by the Department of Justice do not currently appear to fit the potential crime of mishandling classified information.  The closest recent comparison is Donald Trump’s 2016 opponent, Hillary Clinton.  The former Secretary of State was investigated by both the Inspector General and the FBI for the use of a private email server during her time serving under President Barack Obama.  Though the potential crime was the same, Ms. Clinton was not the subject of any raids.  Instead, the Department of Justice negotiated the return of the email server and several thumb drives.  Even after it was determined that Ms. Clinton improperly deleted approximately 30,000 emails in violation of both record keeping laws and Congressional subpoenas, the FBI refrained from the use of any strongarm tactics similar to those deployed against President Trump.  Nor was Ms. Clinton ever charged with a crime, even though then FBI Director James Comey specifically noted that she was “extremely careless” in handling these materials, which happened to be all the statute called for to secure an indictment. This differential treatment has prompted many conservatives, including myself, to believe that the Department of Justice has become politicized if not all out weaponized, a threat to democracy itself.  Contrary to popular belief in the mainstream media, prosecutors are not empowered to investigate anyone they want, much less execute warrants and raids for anything and everything they might want related to even an active investigation predicated on a legitimate probable cause.  Especially in cases involving sensitive matters which may well be in legal dispute, and there is nothing more sensitive than an investigation of a former President with both security clearance and reasonable claims of Executive Privilege over document retention, these tactics are supposed to be a last possible resort.

The Fourth Amendment to the Constitution says specifically, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  This means two things in practice.  First, the prosecutor, whether federal, state, or local, has to have established a reasonable predicate for the investigation.  An investigation is not opened into a person.  It’s opened into a specific crime where there is a legitimate reason to believe the crime has in fact been committed.  Second, a search warrant is never supposed to be issued for a blanket purpose.  It must specify, in some acceptable level of detail, the locations to be searched and what is expected to be found.  There is also a longstanding custom that raids are only utilized when the information sought couldn’t be obtained in another manner such as through negotiation with Trump’s attorneys as had already been happening.  Some, like former federal prosecutor Andrew McCarthy believe the Department of Justice is engaged in something of a bait and switch, writing that the “search was almost certainly about much more than classified documents.”  “There’s a game prosecutors play. Let’s say I suspect X committed an armed robbery, but I know X is dealing drugs. So, I write a search-warrant application laying out my overwhelming probable cause that X has been selling small amounts of cocaine from his apartment. I don’t say a word in the warrant about the robbery, but I don’t have to. If the court grants me the warrant for the comparatively minor crime of cocaine distribution, the agents are then authorized to search the whole apartment. If they find robbery tools, a mask, and a gun, the law allows them” to prosecute X for that crime.

This prompts an obvious question:  What else might they have been looking for in this legally circuitous fashion?  Some progressives seem to believe the real target was information related to January 6, but what is the likelihood there was a smoking gun letter to the Proud Boys ordering them to attack the Capital is framed on Trump’s wall?  The former President has been out of office for over 18 months. The idea that smoking gun evidence is lying in plain sight at Mar-a-Lago should strike any reasonable observer as absurd. Others, like the Miami Herald, believe the FBI used Trump’s own cooperation against him.  By turning over some documents, he opened the door for the Department of Justice to look for more.  “Federal agents were able to establish probable cause for the warrant because Trump and his lawyers had already turned over some classified documents that had been sought by the National Archives and Records Administration, the source said. Agents suspected that Trump was unlawfully holding other classified documents from his presidency in his private club and residence at Mar-a-Lago, which is the crux of the investigation led by the FBI and Justice Department in Washington, D.C.”  Either way, Trump’s millions upon millions of supporters aren’t likely to be satisfied with these kinds of potential prosecutorial chicanery, and with good reason given none of these steps were taken when Hillary Clinton was the target of the same kind of investigation.

These questions should ultimately get answered at some point.  The currently sealed warrant will be released and it’s impossible to believe the Department of Justice can stay silent on such a controversial, potentially explosive topic for long.  They will need to either take the equally unprecedented step of indicting a former President or at a minimum make a statement to explain their actions in detail.  In the meantime, many seem to think this is some grand stratagem to prevent President Trump from seeking the Presidency again in 2024.  They argue that the Justice Department under Joe Biden and Merrick Garland couldn’t possibly have taken such an unprecedented step if they were unsure of the end game, and the end game must be prosecuting Trump under the records act.  Harry Litman, writing for The Los Angeles Times, encapsulates this view.  “A very plausible answer is that a charge related to official documents could swiftly and cleanly serve as the basis for a satisfactory resolution of the pox on the country that is Donald Trump. A more straightforward, prosaic answer to why the warrant was served is that the Department of Justice has assembled evidence of probable cause that evidence of a crime would be found at Trump’s Florida home.”  He continued, “The majority of those who are the subjects of federal warrants wind up getting charged with federal offenses. That is, Monday’s warrant and the search unequivocally lock Trump and the government he used to lead in an arch-antagonistic posture, playing for the highest of stakes and for keeps.”

Interestingly, Mr. Litman believes prosecution under the records act is more realistic than anything related to January 6.  “It might seem puzzling, even disappointing, that the Justice Department and the FBI would have chosen to throw down the gauntlet for a crime — ‘concealment, removal, or mutilation generally’ of official documents — that is far from the most serious of those we think the former president may have committed, such as obstruction of justice, fraud against the United States and, most dramatically, seditious conspiracy,” but “a documents charge, as presidential accusations go, would be relatively easy to prove and would sidestep issues of 1st Amendment protected political activity that Trump no doubt would claim if he were indicted in relation to, say, his incendiary speech at the Ellipse on Jan. 6.”  Mr. Litman is particularly impressed with this clause in the record act:  Anyone convicted “shall forfeit his office and be disqualified from holding any office under the United States.”  Thus, “Trump would be duly punished. Were he exiled from office, it would remove at a stroke the most dangerous and polarizing aspect of his continued defiance of the rule of law. To adapt the words of President Ford when he pardoned Nixon, Monday’s Mar-a-Lago search could well be the beginning of a fitting and broadly — if not universally — accepted end to our latest ‘long national nightmare.’”

This view strikes me as more fantasy than reality, even setting aside that attempting to prevent one of the most popular politicians in the country, a man with a tremendous base of fervent support from running again is yet another unprecedented attack on democracy, denying voters the opportunity to choose the person to lead the country on their own.  First, Mr. Litman himself acknowledges that the Constitutionality of the provision barring a person from office has never been tested.  The Constitution itself provides the qualifications for President and says nothing about a lack of eligibility after being convicted for a crime.  The only way to remove and bar a person from office is via a two third majority vote in the Senate during a trial for impeachment.  More importantly, however, the totality of these actions do not strike me as having been undertaken with much foresight or understanding of what comes next.  President Trump holds no political office right now and wields no government authority.  The only power he has comes from his popularity in Republican circles.  On the contrary, all of the actual power is currently held by Joe Biden and Merrick Garland, meaning there is no need for them to proceed in secrecy given the high political stakes, the growing anger among Trump supporters, and the risk of a potential backlash for taking such an unprecedented move.  If they truly had something meaningful, they could simply state their plans, explaining precisely what they are investigating, why the warrant was justified, what they were looking for, and why the information couldn’t be obtained in some other way.  This approach would provide transparency, give people insight into their thinking, and potentially calm tensions with Republicans, who currently see only the actions of a completely out of control Justice Department pursuing a political vendetta.  This view is shared by none other than former Democrat governor, Andrew Cuomo.  He tweeted the obvious, “DOJ must immediately explain the reason for its raid & it must be more than a search for inconsequential archives or it will be viewed as a political tactic and undermine any future credible investigation & legitimacy of January 6 investigations.”

In my opinion, their refusal to say anything actually says everything.  Putting this another way, does anyone seriously believe Joe Biden is sitting on a smoking gun that would put Trump in prison, but he refuses to share it for some reason? The underlying motivation is simple:  They loathe Trump and want to see him punished one way or another.  Nothing else, not hundreds of years of precedent, the obvious conflict of interest investigating their likely 2024 rival, the rule of law, or even democracy itself applies.  It’s also impossible to mistake their apparent disdain for Trump supporters.  They have done what no one has ever done before, but do not feel under any obligation to explain or justify their actions.  In their view, they can simply do whatever they want without repercussions.  It’s equally unclear that anyone in the administration or part of the anti-Trump movement more broadly truly understands what any potential prosecution of an extremely popular former President might entail, especially if the crime is of the hazy, somewhat political variety where the Justice Department has frequently chosen not to prosecute in the past.  The underlying assumption appears to be that President Trump can simply be marched into court like an ordinary citizen and all will be well.  The reality, however, is likely to be far different.  If a raid on a former President is unprecedented, a trial would be earth-shattering.  There will be tens of thousands of people in the streets on both sides.  Politicians in both parties will be forced to act to preserve their own political future.  A potentially Republican House of Representatives is already threatening action.  Republican states will have to go on record for Trump and Democrats against.  Some of these states might take bold steps such as granting the former President sanctuary, declaring any verdict void, or threatening to secede.  In principle, federal law trumps state law, but in practice is the Biden Administration really going to march into Florida to remove Trump while under the protection of governor Ron DeSantis?  There will be no place for anyone to hide, no political cover for anyone in the middle, the entire country will be paralyzed and polarized more than anytime in recent memory, complete with borderline insane capacity for confrontation and violence.  This is the stuff Civil Wars are made of, and one of the key reasons no administration has ever taken this step against a predecessor.  President Biden, however, has chosen to smash through that barrier without bothering to explain why and no one knows what lies beyond, except it will not be good.  That I assure you.

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