The real question is whether justice has indeed been blind to the point where these and potentially other actions are fundamentally altering its nature, or has justice been transformed into the raw exercise of power rather than the pursuit of truth and fairness.
Last week, critics of President Trump and his supporters on both the left and the right in some cases insisted that a conservative cannot support the raid on former National Security Advisor John Bolton’s home, believed to be in pursuit of classified documents. In their view, the President is engaging in political retribution, attempting to silence his enemies, and using his powers as Chief Executive to do so in a necessarily corrupt manner. As The Atlantic’s Shane Harris described it, “Purge doesn’t adequately capture what national-security experts see happening here. Chilling effect is too mild, though revoking the security clearances of two senior intelligence officers, as Gabbard did, effectively ending their government careers, will indeed send a message. Terrorizing the workforce is a phrase I heard a lot this week. And that may indeed be the point.” Some even went so far as to insist that conservative supporters of Donald Trump are openly cheerleading fascism. The Washington Post compared to an infamous quip associated with Joseph Stalin, claiming the “Trump administration is launching its own version of show–me-the-man-and-I’ll–show–you-the-crime lawfare.” The message was clear that we have abandoned all of their supposed principles in the process, preferring to genuflect before their leader over embracing our values. According to these and other critics, even though we do not yet know the reason for the raid, much less if anything was found suggesting potential criminal activity, our supposed principles require us to adhere to an objective standard for the rule of law and therefore any action by the Justice Department that touches upon President Trump’s critics, and clearly Mr. Bolton was a critic, is a fundamental violation of that standard, rendering all of us conservatives hypocrites bowing before President Trump’s authoritarian demands as he bends justice itself to his will. While this might be one way to see it, it’s based on the assumption that the “justice” carried out by the Justice Department has actually conformed to the standard in question in recent years. If it has not, that would mean there is no standard to adhere to and imply that another principle is at stake. Putting this another way, the real question is has justice indeed been blind to the point where these and potentially other actions are fundamentally altering its nature in a way hitherto unseen, or has justice been transformed into the raw exercise of power rather than the pursuit of truth and fairness?
In this regard, we know with absolute certainty that President Trump himself was indicted almost 100 times, in each and every case by a member of the opposite party. In fact, his own residence at Mar-a-Lago was the subject of a similar pre-dawn raid almost exactly three years ago before charges were formally filed, ironically over a similar potential issue with classified documents, making the occurrence highly instructive for us now. At the time, President Trump’s critics were not decrying authoritarianism and insisting this could only be a political persecution. Instead, they almost universally claimed the raid his home and the resulting prosecutions were precisely what justice demanded. In there view, the situation was simple and essentially non-political. The former President had unlawfully removed classified documents from the White House and refused to return them when asked, potentially risking national security by storing them at an insecure facility. The FBI, in this telling, had no choice but to execute a raid to retrieve them and the Biden Administration was fully justified in doing so, but like so many mainstream media narratives, this only tells half the story. To begin with, there is the implicit assumption that – even if the situation was exactly as described – there was no other remedy than raiding a former President’s home and somehow the Biden Administration was forced into this action, but there is significant reason to question if this was truly the case. First, we know that President Trump was actively working with the National Archives and the Department of Justice to resolve any potential issue with the retention of classified documents long before the raid. Two months earlier, CNN reported 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. Afterwards, the President’s attorneys signed a statement claiming that all classified information was returned to their knowledge, some fifteen boxes of it. The raid, it was said, was conducted merely to “verify that nothing was left behind,” but given it only uncovered a tiny fraction of the total documents, a hundred or so scattered across thousands of materials, there is no reason to believe these could not have been secured in a less intrusive fashion – as they were when President Biden himself was found to have classified documents at his home in Delaware and other locations. This is doubly true when, to our knowledge, no follow up request was made for additional documents before the raid, only the raid itself.
Second, President Biden, White House lawyers, and other Democrat lawmakers were actively working with the National Archives the entire time in a way that appears to have been designed to engineer the raid in the first place. After President Biden took the unusual step of waiving executive privilege over the records stored at Mar-a-Lago, a move the Washington Post described as having “rejected 200 years of history” and the Associated Press said was “risky,” it “could come back to haunt him,” White House Deputy Counsel Jonathan Su began engaging with Archives directly in April 2022, four months before the raid in question. On May 10, acting National Archivist Debra Steidel Wall sent a memorandum to former President Trump’s attorneys noting the current White House had become formally involved. “On April 11, 2022, the White House Counsel’s Office — affirming a request from the Department of Justice supported by an FBI letterhead memorandum — formally transmitted a request that NARA provide the FBI access to the 15 boxes for its review within seven days, with the possibility that the FBI might request copies of specific documents following its review of the boxes,” she wrote Evan Corcoran, Trump’s attorney. In this memo, Ms. Wall specifically described how she’d already been empowered to bypass any privilege claims and that she would somehow exercise her own non-existent right to do so on their behalf. “The Counsel to the President has informed me that, in light of the particular circumstances presented here, President Biden defers to my determination, in consultation with the Assistant Attorney General for the Office of Legal Counsel, regarding whether or not I should uphold the former President’s purported ‘protective assertion of executive privilege,’” she wrote. “I have therefore decided not to honor the former President’s ‘protective’ claim of privilege.” Even worse, this maneuvering was occurring while President Trump was requesting time to review the documents in question and determine whether he believed they fell under Executive Privilege in the first place, meaning she rejected the claim before it was even formally made in many instances. Prior to the May 10 memo, Mr. Corcoran wrote to Gary Stern, General Counsel for the National Archives on April 29, copying Mr. Su as well. “We have requested the ability to review the documents. That review is necessary in order to ascertain whether any specific document is subject to privilege. We would respectfully request that you restrict access to the documents until we have had the opportunity to review the documents and to consult with President Donald J. Trump so that he may personally make any decision to assert a claim of constitutionally based privilege.” Though Ms. Wall claimed this extension would be granted, “The White House Counsel’s Office acquiesced in an extension of the production date to April 29, and so advised NARA. In accord with that agreement, we had not yet provided the FBI with access to the records when we received your letter on April 29, and we have continued to refrain from providing such access to date” and yet a grand jury was empanelled in two weeks and a subpoena was issued for the documents, all while former President Trump was cooperating with the National Archives.
Beyond this legal maneuvering, there are serious questions about the powers and privileges of a President and a former President both to declassify documents while they are in office and to control their records after leaving office. While the refrain that “no one is above the law” has been frequently repeated in recent years, Presidents, as one of the few named officers in the Constitution and the only officer imbued specifically with executive authority, is clearly not supposed to be below the law either. In 1988, the Supreme Court ruled that “The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States.’ The U.S. Constitution, Art II, Section 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power and exists quite apart from any explicit congressional grant…The authority to protect this information falls on the President as head of the Executive Branch and Commander in Chief.” Based on this ruling, it would have been reasonable for the Biden Administration to assume that any documents President Trump removed while in office were de-classified simply by the act of removal or at least begin the discussion from the perspective that the former President might well have the right to retain them. This interpretation seems even more reasonable when you consider that the Archives Act that describes how Presidential records are stored and maintained, grants broad power to the President in question to determine which records are official and which are personal. As a district court ruled in 2012, “Under the statutory scheme established by the PRA, the decision to segregate personal materials from Presidential records is made by the President, during the President’s term and in his sole discretion, so the Deputy Archivist could not and did not make a classification decision that can be challenged here.” In other words, it is far from clear that the National Archivist had the power to undertake any of these actions in the first place, and yet from that basis President Biden chose to allow his Justice Department to conduct an unprecedented raid followed by unprecedented charges.
From this perspective, the real principle at play is the exercise of raw power. President Biden had the power to unleash his Justice Department upon President Trump under his authority as Commander in Chief, but he had to choose to do so when there were other, far less intrusive and far less unprecedented means at his disposal. Instead of seeking a measured resolution, however, he and his administration decided to wield their power to its absolute fullest in an attempt to jail a political opponent, hoping he would not be able to run again. At the time, they were warned – even by the mainstream media itself – that this would have repercussions, indeed it could “come back to haunt him.” Therefore it is hard to conclude that the raid and subsequent charges did not constitute a political persecution, whether or not you personally think President Trump somehow deserved it. Today, however, President Trump has the same power and – after this power had been wielded against him personally – there is no conservative principle that requires him to not wield it to the same full extent, especially over the very same matters, unless you believe there is something that compels conservatives to unilaterally disarm and surrender. Indeed, I would argue the opposite, that principle requires he use it and the time to discuss other principles that should be important was three years ago, the first time this happened.
Confessions of a Conservative Atheist 