Updated: Aug 10
The FBI search of the Trump palace at Mar-a-Lago has prompted some interesting propositions of a political and legal nature. The distinguished solon from SC Lindsey Graham, writing at the equally distinguished forum for scholarly discourse and disputation Twitter, put forward a variation on the McConnell principle invoked to justify the Senate's refusal to take up the Supreme Court nomination of Merrick Garland in the last year of Barack Obama's second term in office. Wrote Graham: "launching such an investigation of a former President this close to an election is beyond problematic." Let me see, said the blind man. The next presidential election is in November 2024. Even a poet may be capable of the mathematical calculations needed to determine that at present we are less than halfway through the four-year cycle and more than two years removed from that date. How far off would be sufficient for Graham to deem it not beyond problematic?
The redoubtable congresswoman from NY Elise Stefanik warns, "If the FBI can raid a former U.S. President, imagine what they can do to you." Yes, imagine what they can do to you if you violate federal rules regarding preservation of presidential records, conspire to overturn an election, sanction a violent assault on the Capitol, obstruct an official proceeding, tamper with witnesses, etc. (for a more complete summary, see Kimbery Wehle, The FBI Search of Mar-a-Lago: Five Takeaways and Questions, The Bulwark, August 9, 2022).
The Republican Party has predictably rallied around the twice impeached former president with proclamations that there will be a tidal wave of investigations if Republicans take back control of Congress in November. The noted champion of law and order Marjorie Taylor Greene has already issued the call to defund the FBI. This is accompanied by proposals for wholesale housecleaning within the executive branch if Republicans reclaim or, if necessary, seize the presidency in 2024. Among the mildest of the responses is the claim that the search is unprecedented, made without taking into account that the the scope and magnitude of the former president's misdeeds are also unprecedented. There are reports that even Republican voters who profess themselves weary of the Trump circus have reembraced the faith. Speculation that this will redound to his benefit is plausible and speaks to the level of degeneracy within Republican ranks (Matt Berg, Marissa Martinez and Matt Dixon, Trump's 2024 GOP rivals rally behind him after FBI search, Politico, August 9, 2022). Looming over it all is the specter of violence fueled by the heated rhetoric.
The investigation of a former president or current candidate would always warrant scrutiny because of the potential for politically motivated shenanigans. The imperative for the investigation to be squeaky clean, to avoid even the appearance of political machination or other impropriety, does not however give former presidents and current candidates a pass on rule of law. The announcement of one's candidacy for president, or other high office, does not serve as immunization against legal accountability for high crimes, misdemeanors, and other chicanery.
Thus far we have only a lot of guesswork and bloviation about the the investigation, the basis for the search warrant, and what the search turned up. Attorney General Merrick Garland and the Department of Justice have moved cautiously with investigations related to the January 6 attempt to overthrow the government, much to the consternation of some Democrats. We must hope that all i's are dotted and t's crossed. Any misstep, however innocuous, minor, and of minimal relevance, will be seized upon by the MAGA faction.
Tim Scott, the junior senator from SC, was right when he advised against a rush to judgment, for which he was almost instantaneously pilloried by allies of the man who could, chillingly, be the next president. Scott is one of the few cooler heads who have spoken up from the Republican side of the aisle. For their part, Democrats would do well to keep a collective low profile while the investigation plays out. Many of us will be surprised if the investigation fails to turn up additional evidence of serious wrongdoing, of which there is already an abundance in the public domain.
Trump—after a fierce campaign against [Hillary] Clinton in which he called for her to be jailed for her handling of classified material—signed a law in 2018 that stiffened the penalty for the unauthorized removal and retention of classified documents from one year to five years, turning it into a felony offense. (Kyle Cheney, Why the Trump search warrant is nothing like Hillary's emails, Politico, August 9, 2022)
Charlie Sykes, The DOJ Crosses the Rubicon:
The search obviously took Trump by surprise and set off a political firestorm…but it’s safe to assume that Attorney General Merrick Garland, the FBI, and a federal judge, all knew that it would set off this kind of reaction.
And they pulled the trigger anyway.
They also must have known that by raiding Trump’s home, the DOJ would be crossing the Rubicon…there’s no going back now. (The Bulwark, August 9, 2022)
Adam Serwer, Conservatives Believe Trump Is Above the Law:
the case against Trump here is impossible to evaluate, because we know the basis neither for the warrant nor the investigation. So the certainty that Trump is being politically persecuted cannot be supported by evidence. It is instead based on ideology: There are people against whom law-enforcement action or abuse is always justified, and there are people against whom it can never be justified…[There are circumstances where] conservatives will insist that such officers are infallible and that any criticism of their conduct is outrageous. But when the law is used to investigate or restrict the conduct of people deemed by conservatives to be above its prohibitions, that is axiomatically an abuse of power. (The Atlantic, August 9, 2022)
Memo from the editorial desk. A minor, nonsubstantive edit was made for the sake of clarity in the sentence beginning "Even a poet" near the end of the first paragraph and the sentence beginning "Looming over it" was added as the end of the paragraph beginning "The Republican Party has predictably" was added after this piece was published.