The United States is a land of propositions. One of those propositions is that no man — not even the president — is above the law. Another proposition is that those who temporarily wield power must not use it to harass or disadvantage their political opponents. Occasionally, these propositions can come into tension. Monday night’s FBI search of Mar-a-Lago provides us with one of those occasions.
There is nothing wrong per se with the investigation or prosecution of political figures. Indeed, that the most powerful and popular people in the country may be held responsible for their crimes serves as the very definition of equality. But, because the perception of impropriety can be so damaging to the political order, the occupants of positions of power have a special obligation to tread lightly when dealing with their ideological opponents. The difference between a free republic and a banana republic is not whether the powerful can be held to account, but whether the powerful are held to account legitimately, in a manner that is not a transparent pretext for ulterior motives. Does the Department of Justice understand this? The jury is still out.
The most common defense of the search has been circular: to wit, that the FBI would not have taken a step this dramatic unless it really needed to. But this, of course, will not do. Not only does such an approach accord carte blanche to the government, it rests upon a presumption that has been severely undermined by the developments of the last six years. In 2015, Americans might have been forgiven for assuming that, if the Department of Justice was looking into a president, it must have an excellent reason. But after the Steele dossier, the FISA surveillance of Carter Page, the Mueller report, and the near endless web of implications and insinuations that tied up American politics for the first two and a half years of Trump’s presidency, one can no longer fall back on such reflexive credulity. If the government has a case, it must make it as bluntly as it can — and it must make it now.
To this end, President Biden must explain why it was necessary for his administration to stage an unannounced search at the home of a potential presidential rival. We deserve to know why it was necessary for DOJ to go to DEFCON 1 by obtaining an intrusive search warrant. Did prosecutors try to obtain the evidence by grand-jury subpoena? If not, did they have a good reason to believe Trump and his lawyers would contemptuously flout a subpoena?
Of course, Biden will say that he regards DOJ as an independent component of government with which he never interferes. He may believe that, since he is a constitutional illiterate. But that does not change the constitutional fact that he is chief executive and responsible for what DOJ does.
For the FBI’s search to have been necessary, a few conditions must have obtained. There must have been probable cause that suggested that a crime had been committed or, if not, that a crime was about to be committed. There must have been a need to obtain the evidence in question swiftly, and without its owner being notified in advance. And that evidence must not have been attainable by other means. It is not impossible to imagine circumstances in which these conditions were met, but it is certainly extremely difficult — especially if, as seems likely, the search was related to records missing from the presidential archives.
If, as it will undoubtedly insist, the federal government had no choice but to take the action it did, it will presumably feel comfortable making that case before the American public. It should do so immediately. Transparency is the bare minimum that law enforcement can provide to reassure the public that it understands the delicate balance between enforcing the law and abusing its discretion.