What the Mar-a-Lago search portends for the US, and a president

The FBI search of former President Donald Trump’s cherished Mar-a-Lago retreat represents one of the most politically sensitive – and possibly explosive – law enforcement actions ever taken by the United States Department of Justice.

To Mr. Trump’s opponents the sweep indicates that the Justice Department seems determined to hold even former U.S. chief executives subject to the rule of law. Attorney General Merrick Garland himself almost certainly had to approve the Mar-a-Lago search warrant application, say legal experts.

Trump supporters erupted following the search, expressing outrage about what they said was unjust political persecution of President Joe Biden’s possible 2024 opponent.

Revelations as to what the search was after, what it found, and the context of the FBI’s investigation could affect these relative positions. News reports indicated agents wanted documents Mr. Trump had brought to Mar-a-Lago from the White House.

But the moment agents passed through the Florida retreat’s gates, the once unthinkable prospect of the prosecution of someone who sat in the Oval Office seemed, if not probable, more possible. Given the tensions of today’s politically polarized nation, the consequences of such a move remain unpredictable.

Richard Davis, who served as an assistant U.S. attorney on the Watergate prosecution force, remembers when the nation last faced a similar predicament.

Today’s situation is more dangerous than Watergate, he says. There was partisanship then, too. But the Jan. 6 insurrection has shown that heated words can lead to action. 

“We are at a risk of crossing a divide,” says Mr. Davis, now a New York-based attorney.

Serving a former president

Few specifics around the FBI investigation that led to the Mar-a-Lago search are clear. But law enforcement experts believe it has heightened Mr. Trump’s legal jeopardy.

“The majority of searches of this sort [result] in federal criminal charges,” says Harry Litman, a former U.S. attorney and deputy assistant attorney general.

What we know at this stage is that the Justice Department is investigating possible illegal retention of official documents by Mr. Trump. Almost all presidential and federal records belong to the U.S. government, not the president or officials themselves, and there are several federal laws outlining what records are illegal for officials to take home with them.

To authorize the search last night, the FBI would have had to convince a federal judge that it was likely the former president had committed a crime, and that evidence of that crime would be found at Mar-a-Lago. And of the possible laws the government may be investigating Mr. Trump of breaking, one stands out: 18 U.S. Code §2071, which prohibits the “concealment, removal, or mutilation” of records belonging to the U.S. government.

Official charges are likely still some way off, however, if they come at all, according to Chuck Rosenberg, a former U.S. attorney and senior FBI official.

“This [search] does not mean that he will ultimately be charged with a crime,” he wrote in an email to the Monitor. “If charges will be brought, it is almost certain that prosecutors and agents have more work to do.”

But the timing of the search raises questions. Mr. Trump has said he was cooperating with authorities looking to retrieve government records, raising the possibility that the Justice Department was worried that documents could be destroyed or removed. (The National Archives said in February it was communicating with the DOJ about recovering records from Mr. Trump.)

Executing a search warrant would help prevent such destruction, said Mr. Rosenberg, so that could have been a concern.

But “we do not know that just yet, and we need to be careful about conjecture, here,” he added.

This kind of law enforcement action against a former president is unprecedented, and Justice Department officials would have been aware of that before authorizing the search, according to Mr. Litman, who also teaches constitutional law at the University of California’s San Diego and Los Angeles campuses. They would have been conscious they were serving a warrant on a former president for the first time ever.

“It couldn’t have been less than the No. 2” at the DOJ who approved the search, he adds, “and I think it would have been [Attorney General] Garland.”

Mr. Trump and his allies immediately criticized the search as a politically motivated abuse of power by the Justice Department. But what has happened to Mr. Trump in the past 24 hours is what normally happens to any criminal suspect in such an investigation, experts say.

“A ‘neutral and detached’ judge authorized the warrant once prosecutors met the legal threshold required by the Fourth Amendment,” wrote Mr. Rosenberg.

“That [criticism] was to be expected ... but this is law enforcement, without fear or favor,” says Mr. Litman.

A politicized Justice Department?

News of the FBI raid drew an immediate, fierce response from many Republicans.

Mr. Trump himself issued a statement that began, “These are dark times for our Nation, as my beautiful home ... is currently under siege, raided and occupied by a large group of FBI agents.”

House Minority Leader Kevin McCarthy of California said the Department of Justice “has reached an intolerable state of weaponized politicization” and vowed an investigation of Attorney General Garland and the department if the GOP retakes the House in upcoming midterm elections.

The mere fact that such a search occurred, said many Republicans, was meant to influence the November vote while damaging Mr. Biden’s most likely 2024 rival.

“What is it, 100 dog days from the congressional election?” says Frank Buckley, a former speechwriter for the Trump campaign and a professor at the Antonin Scalia Law School at George Mason University in Arlington, Virginia. “My initial reaction is, we’ve descended from a concrete rule of law to one where justice is influenced by political considerations.”

Professor Buckley volunteered early on to help Mr. Trump win the presidency, and since then he’s been a leading thinker in the transformation of American conservatism, defending the kind of “America First” nationalism that held so much appeal to the movement that swept Mr. Trump into office.

He’s since become a critic of the former president, however, believing Mr. Trump ultimately lacked the character to hold the nation’s highest office – even if his general policy goals overlapped with his own.

Still, the search of Mar-a-Lago seems to him to be part of a larger political calculus.

“If you’re a Democrat, all you’ve got is Trump, Trump, Trump, and they won’t give it up,” says Professor Buckley, who describes the new brand of conservative ideas in his latest book, “Progressive Conservatism: How Republicans Will Become America’s Natural Governing Party.” 

“The worst nightmare for Democrats would be [Mr.] Trump saying, I’m not going to run. Well, now he’s much more likely to run, sadly,” he says.

“This is serious stuff”

The FBI investigation into Mr. Trump’s retention of presidential records, including classified material, is just one of a number of law enforcement probes the former president is facing.

In New York, Attorney General Letitia James is conducting a civil inquiry into whether The Trump Organization committed fraud by improperly inflating the value of assets.

In Georgia, Fulton County District Attorney Fani Willis is looking at whether to bring criminal charges in conjunction with the efforts of the former president and his allies to overturn the state’s 2020 election results.

In Washington, the Justice Department is conducting a widespread investigation into the larger effort of Trump allies to keep the former president in office despite his election loss.

There is no indication that Monday’s FBI search was linked to questions about Mr. Trump’s effort to pressure state officials or questions dealing with events leading up to the Jan. 6 insurrection at the Capitol.

So why did the FBI take the big step of initiating a search of Mr. Trump’s residence? It is possible the FBI believes it was misled about what documents were retained at Mar-a-Lago, and obtained a search warrant on those grounds. It is also possible officials were worried that retained documents were being, or about to be, destroyed.

Mr. Trump returned 15 boxes of material in January, but only after delaying for many months, and in the face of threatened further action from the National Archives.

The preservation of presidential archives is not a small thing, says Julian Zelizer, a Princeton University historian and editor of “The Presidency of Donald J. Trump: A First Historical Assessment.”

“The whole commitment to preservation [of presidential records] really solidifies after Watergate, after the tapes and the battle over the tapes,” says Professor Zelizer. “There’s a realization that this material has consequences, and that sometimes presidents and other politicians don’t want to let people see what happened, because it has a big effect.”

Documents help provide accountability, he says. They provide insight into what presidents did, and what officials in their administration were saying and doing.

“This is serious stuff,” says Professor Zelizer.

The larger point is to ensure that no person is above the law, says presidential historian Lindsay Chervinsky, author of “The Cabinet: George Washington and the Creation of an American Institution.”

Mr. Trump has been out of office for more than 18 months and has retained the records all that time, suggesting that the former president has been given a lot of leeway, says Dr. Chervinsky. Justice officials may have decided to force the issue.

Mr. Trump has a solid core of supporters who will back him no matter what, she adds, “so I think that the focus needs to be on doing what is right, even if it is unpopular at the moment – knowing that it would be more damaging to the nation’s future to not do what is right.”