I’ve been among many Americans hoping — especially since the start of the successful January 6 summer hearings — that Attorney General Merrick Garland would go hardcore. But after all that has come to light about Trump’s complicity in the bloody and violent Capitol insurgency — not to mention the pay-to-play corruption that was the subject of his first impeachment — a matter of documents seems like an odd first choice.
A few important caveats: Trump has not been charged with any crime. Authorizing a search warrant is a few steps, although it establishes the former president under criminal investigation. A lawsuit would make sense if the DOJ had credible evidence that Trump was likely to do something nefarious with classified documents, such as sharing them with a hostile foreign power or using them to bribe or curry favor with someone. With Donald Trump, it is unfortunately plausible.
But the fact is some people obtain for follow-up for mishandling classified material let alone go to jail for it. I understand national security and the historic imperatives of safeguarding the country’s most sensitive information. But, as The Post reports, “Every president has violated the Presidential Records Act in one way or another.” It’s bad but not as egregious as Trump conspiring with others in a fake voter scheme to nullify the 2020 presidential election, refusing to order law enforcement on Capitol Hill when he knew some of his supporters proclaimed their intent to kill the Vice President and Speaker of the House, made US military aid to Ukraine conditional on that country smearing its political opponents, or fired FBI Director James B. Comey after Comey refused to stop investigating Russian interference in the 2016 election.
It’s not just my opinion: Congress sets the penalties for federal offenses to reflect their seriousness. Violation of Presidential Archives Act carries no prison sentence. If Trump deliberately withheld or destroyed classified documents, he would be guilty of another offense, with a maximum sentence of three years in prison. In contrast, the serious crimes for which Trump is exposed as part of the January 6 insurgency, including obstruction of due process and seditious conspiracycarry up to 20 years in prison.
Perhaps prosecutors believe that, of all the crimes Trump may have committed, hiding classified documents is the easiest to prove. But the Jan. 6 House panel provided a roadmap for the Justice Department to prosecute him. for inciting violence on the day of the uprising and attempting to prevent the peaceful transfer of power for the first time in US history.
Of course, Trump could be indicted for both the mishandling of classified documents and his actions to nullify the 2020 election. But the most careful exercise of prosecutorial discretion forces the DOJ to focus on his case. the worst. Otherwise, the Feds open themselves to accusations that they’re throwing mud just to see what sticks.
It’s possible the search warrant was an excuse for FBI agents to search Mar-a-Largo, ostensibly for classified government documents, but primarily for incriminating evidence relating to January 6, 2021. The Court supreme has ruled that such pretext searches are legal. But, frankly, we have yet to see this level of aggression from Garland when it comes to Trump’s role in the insurgency.
In response to the predictable outcry from Trump supporters after the raid, progressives spoke loudly about the rule of law. But no prosecutor charges everyone he thinks guilty. An important consideration is whether bringing an action is in the public interest. And our democracy is at a perilous point.
It is legitimate for the Department of Justice to consider that, in his race for re-election, Trump received, second only to Joe Biden, the most votes in the history of the United States. Trump received 7 million more votes than Barack Obama in either of his presidential victories. Even if Trump, to use his own example, shot someone on Fifth Avenue, many Americans would view a criminal case as partisan politics.
This inevitability is that’s no reason to deny prosecution, but it’s a reason for the DOJ to screen charges — and investigate — with extreme care. The first prosecution of a former US president must be worthy of its historic weight.