Given what happens over the next two years, Donald Trump could either be in the White House or in prison. Such is the fevered state of our neighbour to the south, daily unravelling in ways Canadians cannot afford to ignore.
And so what to make of the FBI’s search of the ex-president’s Florida residence? Should the act secure, as Conrad Black has written, Trump’s place on Mount Rushmore?
Er, no. After the FBI served a search warrant on the ex-president’s Florida residence, the created firestorm is proving as dangerous as it was contrived.
The reaction of Trump’s allies in Congress was the death march of hypocrisy and rabble-rousing. They referred to the FBI as the Gestapo, and accused the Democrats of weaponizing the Department of Justice.
Trump himself mischaracterized the lawful search of his home as a “raid” in which FBI agents “broke into” his safe.
He suggested that the FBI planted evidence, a claim as baseless as his insistence that Joe Biden and the Democrats stole the 2020 election.
He then claimed that he had “declassified” all the documents he had before leaving the White House. Eighteen of his own closest aides have categorically denied that claim, including his former national security advisor, John Bolton. Lie upon lie upon lie.
Despite that, Trump’s enabling sheep in the Republican leadership rallied round. House Minority Leader Kevin McCarthy made a legal threat against the U.S. attorney general, telling him to preserve his documents and leave his agenda open. McCarthy was clearly telegraphing a punitive future investigation of Merrick Garland should the Republicans take back the House of Representatives in the November midterm elections, which they are widely expected to do.
One Republican candidate for Congress in New York, Carl Paladino, went even further than McCarthy. He said that the attorney general should not only be impeached, but executed. He later claimed he was being “facetious.”
Close. He was being fascist. This is the same man who advised Michelle Obama to become a male and go live in a cave with a gorilla, and who wished that her husband would die of mad cow disease. Paladino also said that the times call for a leader like Hitler, ostensibly because of his ability to draw large crowds.
These are the same Republicans who, without a shred of evidence, promoted Trump’s whopper that the 2020 election had been stolen. Only now have they become interested in evidence. Only now are they demanding that the Department of Justice reveal the facts justifying the search of Mar-a-Lago.
What short memories they have.
Lock up who?
It was Donald Trump who wondered publicly as president why the DOJ hadn’t arrested some of his political opponents for an attempted “coup” against his administration. The list of people he wanted “locked up” included former president Barack Obama, Joe Biden and Hillary Clinton.
It was Trump who stirred the bottom of the septic tank in the DOJ until he found Jeffrey Clark, an obliging official willing to put out a false letter saying that there was evidence that the 2020 election had been fraudulent. Clark’s home was recently searched by the FBI and he faces ethics penalties for his actions in assisting Donald Trump to wrongfully remain in power.
And it was Trump who had his attorney general of the day, William Barr, put such topspin on the 448-page Mueller report when it became public, whitewashing serious charges of the president obstructing the Russia investigation. Now a federal appeals panel has ruled that Barr suppressed part of an internal memo he quoted from, which had the effect of “misleading” the public about Mueller’s findings.
Unseal the affidavit? Too dangerous
Several prominent news agencies, including CNN, have joined Trump Republicans in demanding that more information from the FBI’s search warrant be made public. They argue that the search of an ex-president’s home is such an unprecedented event, that there is a public interest in the DOJ revealing why such a step was taken.
Nothing could be more deeply wrongheaded or harmful than revealing part or all of the affidavit attached to the search warrant application. That is how the politicization of the justice system begins, and with it, how democracy crumbles.
For starters, the release of such information would, as the DOJ has argued, reveal the sources and methods the FBI used in the conduct of this active and ongoing investigation. That could imperil the ability of investigators to complete their investigation without interference, and even risk the safety of witnesses and FBI agents.
An exaggeration? Far from it. Forty-two year old Ricky Shiffer took the Republican anti-FBI rhetoric to heart after Trump’s house was searched. An eight-year veteran of the military, he showed up at the Cincinnati office of the FBI in body armour, toting an AR-15 and a nail gun. As he made clear in social media postings, he was out to kill agents. He was shot dead.
And there is one more important problem with making the affidavit public. It would put prejudicial information about any future accused person in front of the public. That could impact that person’s right to a fair trial.
No one should forget that the Jan. 6 committee has already documented a case of alleged witness tampering, sending evidence to the DOJ that Trump himself attempted to telephone a scheduled witness who had not yet testified. The witness had the good sense not to pick up the phone, and to alert their lawyer, who in turn notified the Jan. 6 committee.
Then there is the question of such a release sowing further mistrust in the institutions of government, Donald Trump’s main mission when in power.
Before his frontal assault on the U.S. electoral system in the wake of his 2020 drubbing by Joe Biden, Trump had attacked his own intelligence service, the chairman of the Federal Reserve, the courts, NATO and even Justin Trudeau. Trump called Canada’s prime minister “a far-left lunatic” and “two-faced.” On the other hand, Vladimir Putin and Kim Jong-un were apparently lovely people.
The fact is, the FBI followed exactly the same procedures in applying for and getting a search warrant for Trump’s residence — as they would in any case where there is probable cause to believe that a crime has been committed. The worst they can be accused of is doing their jobs.
They produced their evidence, including an affidavit swearing to the known facts. A judge scrutinized and then approved their application, likely with the aid of a magnifying glass. The FBI then executed the warrant, seizing 20 boxes of information from a man who said he didn’t have any more classified material in his possession. Another lie.
Trump and his lackeys immediately cried foul. More bull. Seeking a search warrant to retrieve such information from the ex-president was not a vengeful, political act. It was enforcing the law. And Trump could hardly claim that he is “blindsided” by the search of his Mar-a-Lago residence.
Trump had multiple chances to hand over documents he shouldn’t have in his possession under the terms of the Presidential Records Act, including top secret material touching national security. The National Archives asked for them, and got some but not all. Then the DOJ issued a subpoena, the nice way of requesting the return of any such documents. Trump did not respond, but one of his lawyers said there were no more documents. The FBI had reason to believe otherwise.
In other words, Trump triggered the search warrant, not Merrick Garland, the FBI, or anyone else. It should be remembered that the person who first confirmed that Mar-a-Lago had been searched, and thereby made it a public issue, was Donald Trump himself.
Finally, releasing highly sensitive information before a criminal investigation runs its course, would switch the venue of this case from the justice system, where it belongs, to the court of public opinion. Trump would like nothing better than to have the mob mentality that led to the storming of the Capitol based on a lie, drive the current narrative that he is once again the victim of a partisan witchhunt. It’s Trump’s old story, yet again. The good guy is really the bad guy, and the bad guy is the victim.
Americans have seen this movie before. The script rests on the claim that somehow a U.S. president, even an ex-president, is above the law. The main reason Trump survived two impeachments in a single, four-year term, was the office he held. That and the Republican senators who gave him a partisan pass at trial.
Some legal scholars argued that Trump could not be indicted while in office, echoing Richard Nixon’s doomed claim that if the president does it, it’s not a crime.
Merrick Garland has reminded Americans that no one is above the law, including an ex-president. Without fear or favour, the attorney general says he will go where the facts lead him. And that is how it should be.
Which is why no one should be surprised later this week if U.S. Magistrate Judge Bruce Reinhart rules in favour of the Justice Department, and the release of only a heavily redacted version of the affidavit laying out the reasons the DOJ believed a crime had been committed.
Expect Judge Reinhart’s ruling to be appealed by the usual suspects. The last place Trump or any of his enablers want to be is under oath, where lying comes with consequences.
When Trump himself was recently deposed in a New York civil case looking into the business practices of the Trump Organization, he pleaded the Fifth Amendment over and over again. This is the same man who famously said in 2016, “You see the mob takes the Fifth. If you’re innocent, why are you taking the Fifth Amendment?”
As for the media interest in getting more information out, about an ongoing criminal investigation in its early stages, the instinct is good but the thinking is clouded. Everyone knows that one of the hallmarks of the justice system in a democracy is that court proceedings should be public and transparent. I have sat in on my share of them. But revealing the content of a criminal investigation long before any charges are considered or laid, is a very different matter. It makes justice and accountability next to impossible.
Which is exactly the way Donald J. Trump wants it.