There is little doubt that the residence and offices of a former president can be subjected to lawful searches and seizures. Anyone doubting this should read the opinion of Chief Justice John G. Roberts Jr. in 2020’s Trump v. Vance as well as the concurrence by Justices Neil M. Gorsuch and Brett M. Kavanaugh.
In that case, a New York state grand jury subpoena had been served on the president’s longtime accounting firm for the president’s papers. The Vance opinions review all the relevant precedents involving Thomas Jefferson, Richard M. Nixon and Bill Clinton. The justices, including the dissenters, agreed that not all criminal subpoenas of a sitting president were barred. “On that point the Court is unanimous,” the chief justice concluded.
If a sitting president is in some circumstances subject to criminal subpoenas from state officials, a former president can most certainly be subjected to criminal process by federal agents. This has never happened before, but as with all things Trump, the past is no guide to the present.
Still, the American public needs to see the warrant — all of it. The former president has a copy; he should make it public. It likely lists the items to be seized and the laws allegedly violated. The affidavit supporting the warrant is probably sealed, former prosecutors say, and Attorney General Merrick Garland can seek to unseal it.
Citizens need to know whether this a reasonable search based on probable cause of some crime by someone with access to Mar-a-Lago — as a judge has clearly decided there is probable cause to conclude — or yet another unmerited strike at the 45th president by the latest in the long line of former federal officials who have tried to take Donald Trump down a peg, or behind bars, and failed.
The questions are: What is the Justice Department looking for, and was this necessary?
So far, it is clearly a search that causes paroxysms of joy and rage on both left and right and is sure to dominate conversation both inside and outside the Beltway for weeks. I head to Wyoming over the weekend to interview GOP candidates ahead of the primary there next week. The onstage conversations will be about inflation and the Democrats enacting a massive expansion of the IRS over the next decade. The hallways, meanwhile, will be full of “Trump got raided” chatter.
counterpointIf Trump did ‘declassify’ records (he didn’t), it would be no less damning
Most Republicans rightly believe that Trump has been unfairly targeted by civil servants motivated by partisanship going back years, long before his stunning election in 2016 and certainly thereafter. The “Steele dossier,” now thoroughly discredited, the charges of collusion with Russia debunked by special counsel Robert S. Mueller III, and the allegations of obstruction of justice dismissed as insubstantial by Attorney General William P. Barr all helped create an automatic suspicion on the right of this latest search.
“We are a nation of laws, nobody’s above the law, that’s for darn sure,” Sen. Lindsey O. Graham (R-S.C.) told me Monday night. “But the politics around getting Trump have been going on so long and so often that we’re talking about constitutional principles here. This is a dangerous moment for the American Constitution. We’ll see how this plays out.”
All reports of the search at Mar-a-Lago state that the matter turned on the former president’s handling of classified information. It is important to know exactly what was taken and who has custody of it. Even though Justice Department prosecutors sought this warrant, it is received wisdom on the right that the government has been willing to bend its own rules in the past to put Trump under unfair scrutiny.
Graham, in our conversation, seemed to draw a distinction between Trump’s comments in the hours before the Jan. 6 riot in Washington and what news reports, including those by The Post, said was the latest search for missing classified documents.
“I’d hate to have to prove that Donald Trump conspired with anybody about anything,” he said. “That means you’ve got to have a plan and stick with it. Good luck,” he joked. “That’s not his strong suit. So, he was a good president, but that’s not his strong suit.”
Even Republicans who might oppose another presidential run by Trump are aware that this search could compel him to run sooner and harder than he might have otherwise planned. Another attempted takedown of the most investigated president in history could leave the former president stronger politically with his base than before — and personally angry enough to run again even if he had been toying with not doing so.
“You know,” Graham warned, “just be careful what you wish for … this guy, he’s been the most blessed person in the world in terms of his enemies.” Be careful what you wish for indeed.
If the investigation misses and sputters out in another fruitless witch hunt in the endless movie of “Get Trump,” the Trump-haters will have missed — again. And 45 will start planning on being 47.