The Washington PostDemocracy Dies in Darkness

Opinion Garland is no gambler. My bet is he’s acting on more than a hunch.

Authorities stand outside Mar-a-Lago, the residence of former president Donald Trump, in Palm Beach, Fla., on Aug. 9. (Cristobal Herrera-Ulashkevich/EPA-EFE/Shutterstock)

The FBI’s search of Mar-a-Lago has created a logical tension at the center of American political life. An attorney general known for prudence and the restoration of norms has acted in bold and unprecedented fashion. If the FBI has been used as an instrument of political harassment — as some Republican leaders allege, without evidence — then former judge Merrick Garland has become Mr. Hyde. Or, in the typically restrained Republican translation, a Nazi.

Some Republicans have gone even further. Further, one might ask, than accusations of reviving the Third Reich? Yes, at least in practical effect. The likely next speaker of the House of Representatives, Kevin McCarthy (R-Calif.), has promised to use his office to persecute Garland, no matter what the justification for the search may turn out to be.

I’ve seen enough,” said McCarthy, who has actually seen nothing of the reasoning behind an FBI action approved by a federal judge. “The Department of Justice has reached an intolerable state of weaponized politicization,” he continued, in the process of pledging the weaponized politicization of congressional oversight. He then threatened, with all the ferocity that a craven, weaselly Trump lickspittle can muster: “Attorney General Garland, preserve your documents and clear your calendar.”

While other Republicans have accused the Biden administration of making the United States a banana republic, McCarthy has pledged his fealty to a disgraced authoritarian wannabe, who actually attempted a coup and now rages against his fate in gold-plated, palm-tree-shaded grandeur, when not giving Castro-length speeches to worshipful crowds that have a history of engaging in political violence at his command.

Dana Milbank: GOP hysteria over the Mar-a-Lago search is an invitation to violence

But while McCarthy’s behavior is typically smarmy, Garland’s untypical behavior requires explanation.

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It is possible that a stickler for the rules such as Garland is offended by Trump’s complete indifference to the rules of presidential document preservation. When I was a White House staffer, careful document retention was SOP, under the control of the staff secretary. (One of the staff secretaries I worked with was Brett M. Kavanaugh, who was always thorough and meticulous.) The material covered by the Presidential Records Act included documents that went to or came from the president, but also documents that passed between staffers. This wide net was designed to preserve an accurate historical record. It also had the effect of helping ensure an orderly, deliberative process.

But enforcement depended, in part, on the norms held and implemented by the president and his senior staff. We know Trump’s view of this process by the fact that a small staff was charged with reconstituting — with clear adhesive tape — documents that the president had “preserved” by ripping them up and throwing them on the floor.

We should hardly expect a president who openly defied constitutional norms to carefully respect document-preservation norms. Which means that the body of documents thrown into boxes, kept in Trump’s basement and gathered by the FBI, could contain anything.

What they contain, however, matters greatly. The protection of former presidents from unjustified legal harassment is also a norm, and an important one. If the material obtained by the FBI contained the third draft of the annual turkey pardon remarks, or even classified material on a coup in Ruritania, Trump would be in the wrong, but Garland would not necessarily be in the right. The likely violations of laws related to the preservation of presidential documents and the handling of classified materials would not be sufficient to order a search on a former president’s home. More important, it would be hard to imagine Garland thinking they would be sufficient.

Ruth Marcus: Merrick Garland is no cowboy

It is also possible that a search formally justified by the protection of presidential documents could have other legal purposes — including feeding into other FBI investigations. This would be legally permissible. But the stakes would still be high. If this were a fishing expedition, in hopes of finding evidence related to, say, the Jan. 6, 2021, assault on the Capitol, the absence of fish would show the expedition to be reckless. A pure bet is a bad basis for an unprecedented act.

No, the justification for the search — not as a matter of law, but as a matter of prudence — would depend on the likely presence of material that is legally damaging to Trump, not just illegally in his possession.

How could the FBI know that the material it was likely to find in a search would be relevant to some ongoing criminal investigation? From document-handling processes at the Trump White House that indicated gaps? From an informant within the Trump White House when the material was taken? From someone at Mar-a-Lago with knowledge of the boxes’ contents?

I would bet, based on everything we know about Garland, that his action was based on the high likelihood of finding legally damning material. It is also possible he is more of a gambler than we understood.

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