Hey GOP: That’s How It’s Supposed to Work

Images courtesy of Axios

Following news of the FBI warrant and search of Mar-a-Lago this past Monday, the GOP was quick to come to his defense and decry the action, echoing parts of the somewhat rambling statement that the former president had put out.

House Minority Leader Kevin McCarthy, who knows he needs Trump’s support if he is to become Speaker in November, declared that the Department of Justice “has reached an intolerable state of weaponized politicization” and promised that Republicans, after taking back the House, “will conduct immediate oversight.” To Attorney General Merrick Garland, he issued a warning to “preserve your documents and clear your calendar”—an ironic command given that it was the mishandling of government records and refusal by White House to fully cooperate that led to this forced recovery of classified documents. It is doubly ironic that McCarthy should condemn “weaponized politicization” in the very statement where he threatens to weaponize a new GOP majority against the Justice Department.

Governor Ron DeSantis of Florida, who is widely considered Trump’s chief rival for the GOP nomination in 2024, also condemned the FBI’s action, saying “the raid of MAL is another escalation in the weaponization of federal agencies against the Regime’s political opponents.” To pile on the talking points, he complained that “people like Hunter Biden get treated with kid gloves” and that “the Regime is getting another 87K IRS agents to wield against its adversaries?” For good measure, he ended by calling America a “Banana Republic.” DeSantis’s criticisms, like those of McCarthy, raised many eyebrows given that he himself has weaponized his state’s government to advance his political and cultural agendas, coming after his opponents by firing whistleblowers and suspending law enforcement officials who won’t toe his line while penalizing businesses from Disney to local drag bars to underscore that pluralism and dissenting opinions won’t be tolerated in his state.

The idea that the FBI action on Monday was a “weaponization” of politics is both wrong and dangerous. The search and retrieval of boxes containing classified information was required to correct an ongoing violation of law and threat to national security. It was carried out in accordance with standard procedure, meaning that investigators submitted affidavits and evidence in support of the warrant, and a federal magistrate found there was probable cause to believe that a crime was committed and that evidence of that crime exists in the places specified in the warrant. In this case, the evidence of the crime were the classified government documents themselves, which apparently were retrieved by agents and under no imaginable circumstances should have been sitting in a Mar-a-Lago basement secured by nothing more than a padlock.

Tellingly, none of the former president’s supporters are actually asserting that Trump is innocent of all wrongdoing. And while they’re clamoring for the Justice Department to make a statement and identify what was taken, these howls are performative because they know that the Department cannot do this. Administration officials would never comment openly on an active investigation, and a release of the details of a warrant suggesting criminality would be manifestly unfair to a potential defendant who must be presumed innocent under our laws. On the other hand, if Trump wants to clear his name and prove that he did nothing wrong, he has a copy of the warrant as well as an inventory of the materials taken and could release those today. But his lawyers have declined to make those documents public.

There may be good reason for that reluctance. As I wrote about earlier, for the FBI’s search of a former president’s home to occur, the action would have to been cleared by the highest levels at both the FBI and the Justice Department, meaning Director Christopher Wray and Attorney General Merrick Garland. Given the inevitable political maelstrom such a search would and did ultimately provoke, it is unlikely that they would have signed off on the warrant unless they had strong reason to do so and promptly, possessed with fresh information about important criminal evidence. In other words, it’s highly unlikely they ordered the search of a former president to recover mere trinkets or memorabilia. GOP leaders might regret rallying so quickly to the side of someone whom the FBI Director, who is a lifelong Republican and a Federalist Society member, was alarmed enough to go after publicly, at great political and personal risk.

And let’s also play out the logic, such as it is, of the former president’s supporters. In the world of McCarthy and DeSantis, the Justice Department would never be able to conduct such a search, even if there were overwhelming evidence of criminal activity, because by definition it affects a major popular politician. That of course can’t be the right answer. For no one to be above the law, the process must be applicable to everyone regardless of station or power, including a former president. 

In this case it was clear that the Justice Department was at pains to limit the political controversy its actions inevitably would create. The FBI conducted the search courteously and professionally, it occurred at a time when they knew Trump would not be there and when the resort was more or less closed for the season, and the agents did not arrive in attire intended to show authority or force. If the former president’s allies have some alternative form of search and recovery they would have preferred, they have not said what it is. 

And after all, for well over a year the National Archives had diligently and courteously sought without success to recover documents taken by Trump from the White House to Florida, some of which they found to be classified at the highest level. And as reports indicated, after Trump’s lawyers claimed they went through the boxes in storage at Mar-a-Lago looking for presidential records that had not been returned, investigators had reason to believe Trump’s team was not being entirely truthful about what still remained. They therefore had no reason to believe that a subpoena would result in their production rather than further delay, obfuscation or even destruction. And new reports indicate that it was indeed an insider who tipped off authorities to the possibility of additional classified information still at Mar-a-Lago.

Investigating a former president still backed by his party is both tricky and unprecedented, but a solid majority of Americans still believe that Trump should be held accountable for his crimes. To do this will necessarily involve things like searches of his property, putting him under oath (and having him take the Fifth, as he did yesterday in his deposition before the New York Attorney General on 440 occasions), and eventually indicting and arresting him if the grand jury returns a true bill. In some ways, the search of his property is not only an important first step in this process, it also releases some pressure around the question of whether the Justice Department will act and how his base will react. And even while it riles Trump’s base and they predictably rally to his defense, it signals to the majority of Americans that Trump’s power, wealth and position will not preemptively shield him from justice and accountability.

And that’s how it’s supposed to work.