AG Garland raids Trump residence
Never in the history of America has an incumbent administration raided the home of an opposition political figure in an effort to find evidence of criminal activities. That is usually the actions we associate with authoritarian nations and third-world banana republics.
The question that needs to be resolved is whether the raid was part of a necessary investigation into legitimate criminal charges – or at least the prospect of criminal charges – or political action.
For such a search warrant to be authorized by a federal court, there are a few bridges to be crossed. The request for such a warrant must convince a judge that there is a “probability” that a crime has been committed. That is a lower standard than “beyond a reasonable doubt” (as required in criminal cases) or even a “preponderance of evidence” (as required in civil cases).
The request for the warrant must state that the materials sought are likely to be found at the location to be searched. And finally, requesting the evidence – or even using a subpoena – will not result in the surrender of the materials sought.
That is how the process works in accordance with the law and the Constitution. But that is not always how the process works in reality. The lingering question is whether the investigations and legal actions taken against Trump are based on an impartial imposition of justice – or motivated by partisan political considerations.
The problem is that from the public view, there are good arguments for both cases. The issue teeters on the point of “prosecutorial discretion.” While we often say that “no man is above the law,” prosecutors are because they can arbitrarily decline prosecution or pursue it with undue and unwarranted aggressiveness.
According to the news reports, the raid on Mar-a-Lago was based on accusations that Trump took classified documents from the White House – documents that are supposed to be stored and preserved by the National Archives. Based on an earlier request from the National Archives, Trump provided 15 boxes of documents. Apparently, his lawyers were in the midst of discussions regarding the question of additional documents.
Taking government documents home – and outside the wall of security – is a crime, but not a class-A felony. In most cases, it is resolved by turning over the documents. In a few cases, people have been charged and convicted. It can result in a fine or a relatively short jail term.
But this case has a nuance that raises questions about the motivation of the Department of justice. According to the law, a person convicted of such a crime may never hold any office again. Convicting Trump of a relatively minor crime (yes, I know the left is hyperbolically elevating it to mass murder) and you prevent him from seeking a second term in the White House.
Now even that is not clear. Constitutional scholars believe that the law would be declared unconstitutional if challenged in the federal courts. That is because the Constitution – and only the Constitution — establishes the eligibility for running for and holding the Office of President.
The action has set off political hysteria on both sides of the partisan divide. There are too many nuances and facets to this – and the broader Trump story – to handle in one commentary. Those issues will be more specifically handled in upcoming commentaries.
The raid on Trump’s home raises more questions than it answers. It will take weeks and months to get a clearer picture. But in the meantime, you can rest assured that the Trump critics will be making the most extreme judgments on their favorite media outlets.
So, there ‘tis.