Let’s define some terms.
The opinion on last night’s FBI raid on Mar-a-Lago around which many in the media seem quickly to have coalesced is that it was, indeed, a “dramatic” and “norm-breaking” event, but that this fact implies that it “must” therefore have been warranted. On CBS last night, Major Garrett confirmed that such action “is without precedent in American history, a former president of the United States now subject to a search of his primary residence by the FBI.” This morning’s Politico Playbook describes it as “the most aggressive law enforcement action ever taken against a former American president.” The BBC notes that “there has never been a search warrant quite like this in American history.”
In response, the most prominent among our pundits seem to have responded, “. . . and that’s just how bad Trump is!” On CNN this morning, George Conway said that “they’ve crossed the Rubicon here. Not even Richard Nixon’s house in San Clemente was searched by the FBI, as far as I know.” Then he said, “You have to conclude there’s something behind the curtain that would surprise us.” On Twitter last night, David Axelrod said, “One thing is very clear. Garland would not have authorized this raid, and no federal judge would have signed off on it, if there weren’t significant evidence to warrant it.” This seemed to be the takeaway on most of the cable news shows, too.
Missing, though, was the second part of the thought. Namely: What if that isn’t true? George Conway says that the FBI has “crossed the Rubicon,” but that this must be because there’s “something behind the curtain that would surprise us.” Okay, but what if there’s not? Then what? I’d like to hear his thoughts. David Axelrod says that “Garland would not have authorized this raid, and no federal judge would have signed off on it, if there weren’t significant evidence to warrant it.” Okay, but what if they did? Then what? I’d like to know what Axelrod thinks that means. If this was obviously justified, Conway, Axelrod, and co. will be able to sit back and say, “see!” And I’ll join them! As I’ve written before, there’s nothing per se wrong with investigating presidential candidates, so long as it’s done even-handedly, and if Trump has committed a crime for which others in a similar position have been prosecuted, then he should be charged. But if it wasn’t justified, and the FBI “crossed the Rubicon” without cause, what happens next? Do we just move on — as if nothing ever happened?
Politico Playbook quotes a lawyer on this point:
“If they raided his home just to find classified documents he took from The White House,” one legal expert noted, “he will be re-elected president in 2024, hands down. It will prove to be the greatest law enforcement mistake in history.”
This is a useful yardstick. It contains a specific and testable definition of “unjustified”: “just to find classified documents he took from The White House.” It contains a judgment that utilizes that standard: “It will prove to be the greatest law enforcement mistake in history.” And it contains a prediction: “he will be re-elected president in 2024, hands down.” I would like to hear a similar specificity from others who have suggested that the raid must have been justified. What, in precise terms, does “justified” look like? And if the raid was unjustified, using those terms, then what should happen to the people who enabled it? Should Merrick Garland resign? Should the judge who signed off on the warrant be impeached? Should the FBI be reformed? Should Joe Biden — who is at the head of the executive branch — be blamed? What would it say about the federal government? Let’s define terms here.
I know nothing more about the details than anyone else, but I’ll lay out my own views on this as best I can. They are:
- that the warrant must immediately be made public
- that as the head of the executive branch, Joe Biden must explain to the country what happened today (yes, it’s Biden’s concern: progressive wishes to the contrary, the DOJ is not some free-floating fourth branch of government, it is under the president’s purview)
- that, for the raid to be justified, the warrant and the explanation must clearly reveal (a) that there was an urgent need to obtain evidence that pertained to a serious crime, (b) that this evidence could not possibly have been obtained by other means, or on another occasion, or without a surprise visit, and (c) that, if the target was not named Donald Trump, a similar operation would have been launched
- that if this standard is not met, Merrick Garland must resign or be impeached, as must the head of the FBI
- that the FBI must be examined and reformed as a matter of utmost priority
There will be more George Conways and David Axelrods on TV and on Twitter today. Any hot takes from them that omit the crucial “then what?” part of the equation will be next to useless.