Republicans wasted virtually no time in decrying the search of former president Donald Trump’s residence at Mar-a-Lago — despite our having very little detail about the search, and despite their very pronounced past concerns about presidential candidates protecting government documents.
What about the message itself? It’s worth breaking down several of the key talking points.
Talking Point No. 1: If it could happen to Trump, it could happen to you
This is perhaps the most pervasive line of rhetoric, having been pushed by multiple Fox News commentators, Rep. Elise Stefanik (R-N.Y.), Sen. Marsha Blackburn (R-Tenn.), the Heritage Foundation, the House Judiciary Committee’s GOP members and many others. Many have connected it to a bill passed in the Senate over the weekend that would add 87,000 IRS agents who, the argument goes, could be turned against Trump supporters. And if there’s one thing Republicans have successfully exploited in recent years, it’s a sense of persecution.
If the FBI can raid a U.S. President, imagine what they can do to you.— Rep. Elise Stefanik (@RepStefanik) August 9, 2022
Like other talking points, though, this leads to the question: Are they saying Trump should be held to a different standard? We don’t know what was in the search warrant or what evidence was used to obtain it, but we do know that it pertains to the removal of documents from the White House, which has been reported on extensively. The National Archives has said on the record that it retrieved 15 boxes of materials from Mar-a-Lago that were supposed to have been handed over to it, and The Washington Post has reported that those materials included ones marked “classified” and even “top secret.” A Trump lawyer now says 12 more boxes were taken, after a dispute about whether Trump had turned over everything he had.
If you removed such documents from the White House, logic would suggest, you, too, would find federal agents quite interested in retrieving those materials. Most people are not in that position or anything close to it.
This is a core problem with the pushback. It is certainly possible that, ultimately, the evidence will be judged insufficient for the search in the court of public opinion (although it had the approval of a judge), but we simply don’t know! Without that, it’s kind of premature to say this is the tip of the emerging police-state iceberg.
Making such a claim without knowing these details sounds a lot like saying a former president should be exempt from investigation, which kind of undermines the idea that nobody is above the law — a common refrain among Republicans when a certain other presidential hopeful was being investigated in 2016. What if the evidence behind the search is damning? The problem with this talking point is that it doesn’t allow for that possibility. It just presumes this is a pittance, when there’s no firm reason to believe that.
Talking Point No. 2: Biden has ‘weaponized’ the DOJ
Many made another rather extraordinary leap, suggesting the White House, or even President Biden himself, was responsible for the search.
Fox News’s Brian Kilmeade relayed such a claim after speaking with Eric Trump, saying the order “has to have come from @POTUS and/or someone in White House.” Trump speculated Tuesday that Biden “absolutely signed off on this.” Heritage said, “Biden needs to answer the question of whether he ordered this raid.” Rep. Thomas Massie (R-Ky.) declared that “until Joe Biden denies it, a President just raided a former President — his political opponent.”
Others laid this at Biden’s feet more obliquely, with Sen. Josh Hawley (R-Mo.) saying, “Biden has taken our republic into dangerous waters.” Sen. Marco Rubio (R-Fla.) said, “Biden is playing with fire by using a document dispute to get the @TheJusticeDept to persecute a likely future election opponent.” The Republican National Committee declared this as evidence of how “Democrats continually weaponize the bureaucracy against Republicans.”
It’s difficult to prove a negative, but there is zero evidence to even suggest Biden or the White House had anything to do with this. The White House has said it had no advance knowledge of the search. Biden said in 2019 that he would not order the Department of Justice to investigate or prosecute Trump. And it would indeed be highly irregular for him or the White House to do anything of the sort.
(Similarly, both Trump and Fox News’s Jesse Watters have moved on to suggesting — again, without any evidence — that the agents who searched Mar-a-Lago might have planted evidence. This is a very serious charge, treated entirely unseriously.)
This talking point is also particularly rich against the backdrop of Trump’s demonstrated penchant for meddling in Justice Department business. There is a president in recent years who has repeatedly and very publicly pushed for politically expedient investigations and prosecutions, including of his electoral opponent. But it was Trump. Biden has demonstrated nowhere near such a heavy hand when it comes to the Justice Department.
Talking Point No. 3: This is third-world stuff
This was in Trump’s statement and was soon picked up by many others.
“This is what happens in Third World countries. Not the United States,” said the House Judiciary GOP. A Fox News commentator repeatedly called the search “third-world [expletive]” in a viral clip. Florida Gov. Ron DeSantis (R) likened it to what happens in a banana republic. Rubio warned we were on track to become like Nicaragua and added, “Using government power to persecute political opponents is something we have seen many times from 3rd world Marxist dictatorships. But never before in America.”
It’s certainly valid to worry about the precedent this kind of thing sets — again, depending upon the actual evidence, to which we’re not yet privy.
But we have indeed seen the American government investigate matters involving politicians, and even a former president in the opposite political party. After Bill Clinton left office, the Justice Department investigated whether Marc Rich effectively purchased his pardon. Richard M. Nixon was sure to be investigated extensively even after he left office for Watergate — we learned in recent years that a grand jury drafted an indictment before he left office — but Gerald Ford effectively took that off the table by pardoning Nixon a month after Nixon resigned in 1974.
This is also hardly the territory of only the Third World. Former presidents in European and other developed countries have repeatedly been investigated and even convicted after leaving office in recent years, including in Israel and South Korea, and it has happened to multiple recent former French leaders. It’s certainly more common in the Third World, where criminal prosecutions are politically weaponized, but it’s not unheard-of elsewhere.
That it hasn’t happened in the United States is a reflection of our unease about that, but it could also be a reflection of what our limited number of presidents did or didn’t do. Again, it’s a matter of the evidence, when we get it — which can then be compared to other former presidents whose conduct was questioned but not prosecuted or subjected to a search warrant.
Talking Point No. 4: Trump could have just declassified the documents
This one has been added to the mix later than the others — apparently for a reason. Rep. Michael R. Turner (R-Ohio) suggested Tuesday that Trump might have declassified the documents he allegedly took, saying that Trump as then-president “unlike Hillary Clinton has the ability to declassify those materials. So, you don’t know what the status of these materials.” Former Trump White House aide Stephen Miller added Tuesday night on Fox News that “the president controls classification authority” and that his word is superior to the National Archives on whether materials were classified.
It’s true that presidents have broad authority over the classification and declassification of documents. But Trump can’t do it retroactively, particularly as a former president who no longer wields such power. It’s also illegal to declassify material for an improper purpose, such as covering up a crime.
Back in May, former Trump administration official Kash Patel claimed that Trump had indeed declassified the materials in the 15 boxes the National Archives retrieved from Mar-a-Lago before leaving office, even if documents still had classified markings on them.
This figures to be a potentially key defense for Trump if this ever gets into the criminal realm — especially given that there’s no set declassification procedure.
But notably, Fox News host Laura Ingraham actually pressed Miller on whether Trump had declassified the latest documents — rightly pointing out that “we don’t know” whether he did — and Miller demurred.
“It wouldn’t matter either way,” Miller said. “His decision would be the final word, presuming that’s even the case.”
That statement sounds less certain than Patel’s was. Certainly, this is space worth watching.