The Washington PostDemocracy Dies in Darkness

A Mar-a-Lago brief by GOP attorneys general is less than meets the eye

Ken Paxton, the Texas attorney general, speaks during the Conservative Political Action Conference last month in Dallas. (Dylan Hollingsworth/Bloomberg News)

When Donald Trump’s residence at Mar-a-Lago was searched last month, the GOP sprang into action. Republicans were willing to go to great and often extremely speculative and unproven lengths to defend him even when we knew very little about the search. This wasn’t just a questionable search, in their view: It was an abuse of power and a political hit job, evidence might have been planted, and so forth.

The fervent support and baseless accusations have died down somewhat since then, as the party grapples with the emerging facts, which paint an increasingly vivid picture of the former president taking highly sensitive documents to his luxury resort.

Enter a group of GOP state attorneys general, who filed an amicus brief in the Mar-a-Lago documents case on Tuesday. The move by the attorneys general for Florida, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, South Carolina, Texas, Utah and West Virginia would seem, on its face, to be a significant show of support for Trump’s legal case.

GOP attorneys general back Trump in court fight over Mar-a-Lago documents

Dig a few inches deeper, though, and it’s significantly less than meets the eye. The document is devoted to attacking the Biden administration and its handling of legal matters; it does next to nothing to actually address the case at hand.

The brief opens with some of the greatest hits of the GOP’s attacks on the search itself. The brief calls it an “unprecedented nine-hour search of former President Donald J. Trump’s private residence” and even characterizes it as the Biden administration “ransacking the home of its one-time — and possibly future — political rival.” (“Ransacking” often connotes stealing things or at least dealing with matter haphazardly and roughly.)

But apart from that, the brief doesn’t deal with the search, Trump’s underlying conduct or even the order that’s being appealed at all. It instead devotes its entire argument to a series of cases in which the attorneys general participated — as well as other matters — that it argues demonstrate legal “gamesmanship.”

Certainly, there’s some grist for that mill. The attorneys general cite how President Biden acknowledged last year that re-upping of the covid eviction moratorium would likely fail in court, but still was worth pursuing because it could help people before it would get struck down. The brief also cites Chief Justice John G. Roberts Jr. accusing the administration of legal gamesmanship in a long-running legal battle over immigration rules.

But otherwise, the brief reads like a hastily assembled list of complaints you might see on a Fox News show. And the examples cited aren’t restricted to court battles; they also include public comments from Vice President Harris last week about the border being “secure,” the administration’s comments about not funding “gain of function” research, and its aborted launching of a “Disinformation Governance Board.” These far-ranging incidents are all gathered in the service, essentially, of one argument: The administration can’t be trusted in its representations of the facts about the Mar-a-Lago search.

But the brief is as notable for what it doesn’t say and what it doesn’t argue. It doesn’t delve at all into Trump’s retention of government documents that could be highly sensitive. (It doesn’t even use the word “classified” at all, in fact.) Nor does it get into the actual legal disputes over the Mar-a-Lago search that had been raised in the case Judge Aileen M. Cannon heard.

It’s a contrast to the amicus brief late last week from a group of GOP law enforcement officials, arguing that Cannon’s order be overturned and dissecting the legal reasoning closely.

These attorneys general say they have an important perspective on the core issue of whether the administration should be treated with the “presumption of regularity” — that is, the idea that government officials “have properly discharged their official duties.” But that goal doesn’t preclude them from actually going to bat for Trump or at least the specifics of Cannon’s controversial order. Yet they opt not to do any of that.

In many ways, this tactic reflects the last time GOP attorneys general stepped forward in a high-profile way to seemingly vouch for Trump. It was after the 2020 election, when Trump was making all manner of false claims about voters fraud, “stolen” elections and the like: Texas Attorney General Ken Paxton and others sued various swing states to try to overturn their results. But rather than echo his claims with full force, the attorneys general — nearly all of the ones on this latest brief, in fact, plus some others — offered a more watered-down version that merely raised questions. It was rather quickly rejected by the Supreme Court.

It’s also reflective of the tack seemingly taken by Trump’s own legal team, which has declined to vouch for many of his claims in court — most notably that Trump had declassified all the documents.

And as always, what people say publicly should be measured against what they — and their allies — are willing to say in a court of law.

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