Law, Tradition and Trust

Quite a few good pieces have been written about the FBI’s warrant-authorized raid and search of former President Trump’s home in Florida. Among them are this one by David French, this one by Andy McCarthy, this one by Noah Rothman in Commentary, and even a not entirely poisonous piece by the Washington Post. I’m not going to try to recapitulate or summarize any of them, and will add only a few points that have come my way through my stints in Counsel’s Office at the George H. W. Bush White House and my roughly 25 years at the Justice Department and the US Attorney’s Office.

First, it’s all but certain that the search was legal. A warrant-authorized search must be supported by probable cause, but that’s a low standard. As Cornell’s Legal Information Institute puts it, “Courts usually find probable cause when there is a reasonable basis for believing that a crime may have been committed (for an arrest) or evidence of [a] crime is present in the place to be searched (for a search).” Notably, probable cause for a search does not require that it be more likely than not that evidence of a crime will turn up. It merely requires a fair probability that a search will result in unearthing evidence of a crime. As the Supreme Court has said, probable cause is a flexible and practical concept, not an academic construct, and includes everything the officers applying for the warrant knew or reasonably believed was true.

I might add that the Justice Department or USAO attorney who was charged with preparing the application for the warrent is very likely to have been the smartest and most experienced person in the office and unlikely to have made a mistake in this otherwise routine assignment.

Moreover, the warrant (apparently to search for classified documents that Trump was required by statute to surrender to the National Archives when he became a private citizen) subsumed the authority to open the safe in which the officers knew or had fair reason to believe they might be stored. If Trump refused to open the safe himself, or provide the combination, the warrant also necessarily subsumed the authority to open the safe by force.

Second, while the search was (as I’m assuming) legal, it was a breathtaking breach of tradition. Never before in America’s roughly 230 year history has federal law enforcement raided the home of a former President. Never before has there been a criminal prosecution of a former President (the exploration of a criminal prosecution being the only proper purpose for which law enforcement may properly seize evidence). And still less has there been a prosecution of a former President assembled by the administration of the man who defeated him in a viciously bitter contest, and who very well may view him as his most likely opponent next time.

Of course it’s true — indeed it’s a truism — that no one is above the law. Donald Trump is no exception. If, for example, a former President were on videotape having sex with a ten year-old, no one would doubt the propriety of forcible and immediate action by law enforcement. Indeed, the abscence of such enforcement would be the scandal. And the former President would, with essentially everyone’s approval, wind up in prison for a long time.

But the present circumstances are nothing like that. The ostensible reason for the search was Trump’s possible breach of the Presidential Records Act. But that sort of thing, even if true, and even if the records are classified, would ordinarily be handled by negotiation. At most, the Justice Department would pursue a subpoena. It’s literally unheard of for an armada of armed officers to raid a former President’s home to secure compliance with a regulatory statute. The word “heavy-handed” hardly does justice here. This is all the more so when, with such self-righteous piety, the present Administration came to power promising to “depoliticize” the Justice Department. Yesterday, it undertook the most radioactively political search ever.

Which brings me to my third theme — trust. I wonder if Ringside has a single reader who trusts everything our former President, or our present Justice Department, says (or slyly omits to say) about this. Or is likely to trust the coming drip-by drip disclosure of any of the important but still largely concealed facts surrounding it.

A short while ago, I wrote one post about the collapse of trust in America’s institutions, and a second about the unfortunate but desperate need for the appointment of a person of unquestioned integrity to take this investigation away from a politics-polluted Justice Department. Right at the moment, I’m feeling like one very unhappy oracle.