Since the FBI raided Donald Trump’s Mar-a-Lago compound on Monday, the Democratic Party’s resistance leaders have been tumescent. Former Justice Department officials are going on television to give an expert gloss to the prospect of the 45th president finally getting prosecuted.
Former solicitor general Neil Katyal, for example, told MSNBC on Monday evening that if he was the former president’s lawyer, he would tell him to prepare for prison time. Marc Elias, the Democratic Party lawyer who commissioned the infamous Steele Dossier, went on Twitter to suggest the raid might mean Trump was guilty of destroying government property and thus ineligible to run in 2024.
It feels like 2017 all over again. And that is what makes this latest episode of Get Trump a farce. At least back in 2017, the hype, speculation and innuendo about the FBI’s probe into Trump world was about the possibility that a grave crime had been committed by the sitting president. And while it turned out that Russiagate was a conspiracy theory hatched by operatives like Elias, no one at the time knew the FBI had run into a series of dead ends in their investigation.
This time, Trump’s alleged crime comes down to a dispute with the National Archives. He did not return all the documents the archive requested in 2021, so he is potentially in violation of the Presidential Records Act. In addition, it’s possible there are classified documents that have not been returned to the archive.
If this is all there is, then the FBI and Justice Department must be reformed. Taking the unprecedented step of requesting a search warrant of a former president’s residence in connection with a dispute that should be handled through civil litigation is using a howitzer to kill a mosquito. If this is an investigation into a former president mishandling classified material, it begs the question of whether Trump himself — when he was in office — used his discretion to declassify documents he took with him to Mar-a-Lago. If that is the case, there is no crime.
Yet even if Trump did not declassify the documents at Mar-a-Lago, there is ample precedent here for a light touch from the Justice Department. Retired General David Petraeus, former national security adviser Sandy Berger and former CIA director John Deutsch all ran afoul of secrecy laws, and all got off with a slap on the wrist. Former FBI director James Comey himself famously cleared Hillary Clinton during the 2016 campaign in a very similar investigation about her use of a private email server when she was secretary of state.
So why does this investigation prompt the FBI to send two dozen agents to break into Trump’s personal safe? At this point we do not know. No one has seen the search warrant or the application for the search warrant. My theory is that Attorney General Merrick Garland is trying to persuade the Democratic Party’s activist base that the Justice Department is taking the former president seriously without actually charging him with a crime. Because if Garland chooses to indict a former president for the first time in American history, he will be reaping the whirlwind.
This is not to say that there are no circumstances under which Trump should be charged with a crime. But that crime must be serious, like conspiring to foment the January 6 riot, and the evidence must be overwhelming. If Trump is instead charged with violating the Presidential Records Act or mishandling state secrets he had the power to declassify as president, Garland will have dealt a grievous blow to the Justice Department’s democratic legitimacy.