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Attorney General Merrick Garland proved on Thursday that he is better at starting a fire than putting out one. Earlier this week, the Justice Department and the Federal Bureau of Investigation (FBI) executed a warrant, seeking evidence of a crime, against the home of a former president.
That in itself was unprecedented in all of American history. Presidents who have risked impeachment or closure, such as Andrew Jackson, Andrew Johnson, Richard Nixon and Bill Clinton, have never faced such a search. In fact, DOJ prosecutors have never charged a former president with a federal crime. That the former president is Donald J. Trump has only multiplied the inevitable controversy.
While the DOJ remained silent, in accordance with Department policy not to comment on ongoing investigations, Trump sharply attacked the FBI for violating his constitutional rights, failing to apply the law equally, and having persecuted for political purposes.
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At Thursday’s press conference, Garland did nothing to address serious questions surrounding the research. Although he admitted to authorizing the search, he correctly observed that a federal court had approved the constitutionality of the warrant and that federal rules prevented him from disclosing anything more.
He announced that the DOJ would ask federal court in Florida to unseal the warrant and inventory of seized items, though he omitted the critical affidavit used to substantiate the need for a search warrant. In other words, Garland added virtually nothing to what is already known.
This position will frustrate the media and the public, although it complies with federal rules that keep many search warrant documents secret for the sake of the privacy of the target (who in this case should want all information to be public). ), to protect confidential sources, and to keep the progress of the investigation secret. This is all common practice – if the target was a normal target.
Under the Constitution and federal rules, a court can only issue a search warrant if there is probable cause that evidence will be found of a crime.
The Justice Department leaks claim the search relates to documents Trump kept in violation of the Presidential Records Act, which generally requires presidents to deposit all official White House records in the US archives.
An obvious problem for the DOJ is that the Presidential Records Act is not criminal law and has no penalties or enforcement. If there’s a crime here, it’s that President Trump has kept classified national security documents that he no longer has the right to have.
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If those are the grounds for the search, Garland and the DOJ made a big mistake — assuming it was a mistake.
Past presidents have taken documents with them. Cabinet officers have even held classified information in an unauthorized manner – remember the dispute over Hillary Clinton’s use of a private computer network that transmitted and stored classified information while she was Secretary of State.
In neither of these cases did the DOJ send a large force of federal agents to conduct a large surprise search. Instead, the DOJ and FBI negotiated with attorneys to get the targets to come to an agreement on the return of the documents.
The use of such aggressive and unprecedented tactics to search Trump’s home begs the question of whether the DOJ was hoping to find more material — possibly related to the investigation into the Jan. 6 attack on the Capitol — during the execution of the warrant for a much less serious charge.
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But there is an even bigger problem here. Garland, the DOJ and the FBI seem to care little that a former president is not – and should not be – a normal target. Of course, former presidents return to the body politic and cannot be above the law. But the law gives former presidents different treatment than ordinary citizens.
A president enjoys absolute immunity from private civil suits for his official actions. Although they don’t enjoy the same immunity from criminal prosecution, prosecutors have generally left former presidents alone. The same goes for Congress, which has generally not required former presidents to appear before it for investigation or testimony.
According to former presidents, these benefits are not a mistaken confusion of our elected chief executives for monarchs. It is done for the sake of effective government.
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The Supreme Court recognized these immunities not to protect past presidents, but to empower future presidents.
We don’t want our CEOs to worry about future legal liabilities when faced with difficult choices, sometimes involving life or death, that are their responsibility.
As the Supreme Court has also found, the Constitution doesn’t want to incentivize presidents to make bad decisions — like not seeking the most candid advice, even if it’s controversial — lest documents be used to embarrass or attack him.
Garland does not appear to have carefully considered the incentives he has created if future presidents think their successors might investigate them, order their homes and offices searched, and even ultimately prosecute them for federal crimes.
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Trump has greatly disrupted the functioning of the government and the political system. Perhaps he was even involved in the January 6 attack on the Capitol – investigations will continue and eventually the American people will learn all the facts of the case. But in pursuing these investigative leads, the Department of Justice must exercise caution.
He cannot allow his desire to investigate Trump to undermine the very standards of equality before the law that are his guiding principle. And it forces Garland and everyone involved in the confrontation with President Trump to consider the damage they could do to the institution of the presidency that has served this nation so well for more than two centuries.
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