Monday’s FBI search of former president Donald Trump’s Mar-a-Lago home was a remarkable, politically explosive and potentially legally consequential mix of the extraordinary and the predictable.
The extraordinary: Never before has the Justice Department requested, and received, a search warrant to rummage around the home of a former American leader and, if Mr. Trump’s claim is true, to break into a president’s personal safe.
The predictable: The charge, from Mr. Trump, that the government he headed for four years was a rogue enterprise, placing his home “currently under siege, raided, and occupied.” The 45th president compared the action to that of a Third World tyranny and said it was part of a conspiracy of his critics and the federal bureaucracy.
The spectacle – agents known colloquially as “G-Men,” short for “government men,” rooting around the storage areas of a former president – set in motion a toxic collision of the Biden and Trump teams with implications for the autumn midterm elections, the 2024 presidential election, and the future relationships of governing administrations and their predecessors.
There are perils in three dimensions in these stunning developments.
For Mr. Trump, the danger is that he is harbouring confidential documents that no former president is entitled to possess. He would be newly vulnerable to legal action that would accompany separate suits that might emerge from the investigation of the House of Representatives committee examining his role in the rampage at the Capitol on Jan. 6, 2021, and separate investigations by the Justice Department.
For the Biden administration, the danger is that this aggressive action will stir a counter-reaction, among Mr. Trump’s supporters in the Republican Party and perhaps some others instinctively suspicious of an activist government. That could legitimize the Trump view that a “deep state” dominated by liberals runs Washington and, indeed, conspired – and continues to try – to thwart Mr. Trump’s movement to “drain the swamp” of an entrenched bureaucracy hostile to conservative values.
Mr. Trump already has blamed the search on “Radical Left Democrats” who he said “desperately don’t want me to run for president in 2024 … who will do anything to stop Republicans and Conservatives in the upcoming midterms elections.”
For the American body politic, the danger is that this action will lead to the habitual criminalization of political behaviour, with successive administrations investigating their predecessors and seeking to penalize or imprison former appointees and officials.
An analogue is the determination, for the moment confined to a small group of Trump loyalists in the House, to seek to impeach Mr. Biden as retribution for the twin impeachments of Mr. Trump.
More immediately, Republican leader Kevin McCarthy of California, poised to become the chamber’s Speaker if, as expected, the GOP takes control of the House after November’s elections, said Monday that the new Republican majority would begin oversight investigations into the Justice Department.
“The Department of Justice has reached an intolerable state of weaponized politicization,” he said on Twitter. “Attorney General [Merrick] Garland, preserve your documents and clear your calendar.”
All this is a measure of the fraught state of American politics, where the era of comity – House Speaker Thomas “Tip” O’Neill Jr., a Massachusetts Democrat, played golf after hours with GOP leader Bob Michel, an Illinois Republican, for example – is in a quickly receding past, and where Republicans and Democrats seldom even join in pickup basketball games in the House gymnasium.
It was in that earlier era that the young senator Joe Biden grew up, and grew powerful, and it is that era of easy political friendships that so alienated Mr. Trump and his core of supporters.
But though both Mr. Biden and Mr. Trump are in their late 70s, it is Mr. Trump’s muscular brand of politics that is the leitmotif of the era and Mr. Biden’s conception of bipartisan harmony and cross-party co-sponsorship of legislation that is in swift eclipse.
Mr. Biden’s vulnerability in the near future is in his performance as president in a time of COVID-19 infection and inflation – and in the lingering questions about the financial conduct of his son, Hunter Biden, a continuing theme in conservative media. Mr. Trump’s vulnerability is far more serious, for Monday’s FBI action is directly connected to his possible violation of the Presidential Records Act.
The legislation, passed in 1978, altered the rules involving White House documents, transforming presidential records from the property of the chief executive to the property of the government or, essentially, the American public. The law, according to the National Archives, “establishes that presidential records automatically transfer into the legal custody of the Archivist [of the United States] as soon as the president leaves office.”
Thus any presidential records found in Mar-a-Lago should have been delivered to the National Archives and Records Administration, which maintains the country’s presidential libraries and various document repositories across the country.
If, as the Justice Department apparently believes, these records include classified documents, Mr. Trump’s vulnerability becomes even greater. Just this week, new evidence emerged suggesting that the former president disposed of some records in a White House toilet.
The danger only grows in the context of the continuing evaluation within the Justice Department of whether to prosecute Mr. Trump on other grounds. This includes “conspiracy to defraud the United States” by seeking unlawfully to overturn the 2020 election, or for treason, which the Cornell University Law School defines as “the betrayal of one’s own country by attempting to overthrow the government through waging war against the state or materially aiding its enemies.”
These are questions that define the country at this moment of tension and contention. Mr. Trump himself, perhaps inadvertently, issued the only remark Monday that could win the endorsement of all Americans, regardless of whom they voted for two years ago, regardless of their view of him or of his successor.
“These,” he said, “are dark times for our Nation.” There is no need for a fact-checker on that remark.