Three key takeaways from the FBI’s search for Trump’s home
And third, despite the tragedy, the execution of the search warrant is far from guaranteeing that any criminal action will be taken. In fact, there’s reason to think the public raid will come as a relief to Attorney General Merrick Garland, whom President Joe Biden has urged to take action against Trump — without forcing him into a prosecutorial decision he has good reason to believe. ‘to avoid. .
Start with the story. Other former presidents have had trouble. But they managed to avoid criminal prosecution, and that reportedly includes being subject to a search warrant.
Richard Nixon never returned the missing portions of the Watergate tapes. But he was pardoned by President Gerald Ford, rendering this investigation effectively ineffective. Aaron Burr was a former vice president when he was arrested and charged with treason in 1807. This is probably the closest thing to the current scenario.
The constitutional significance of this step in the criminal investigation of Trump is that an incumbent administration must be extremely careful and thoughtful in prosecuting the predecessor president. Certainly, under the Constitution, no one is above the law, as the Supreme Court has repeatedly pointed out. Yet the fact that the power to prosecute criminally rests with the executive branch, not an independent prosecutor, means that it is up to the sitting president to ensure that our system does not devolve into a series of retaliatory lawsuits. former government officials.
Think of it this way: if it became completely normal for the administration of a new president to pursue the one who preceded him, it would be difficult to avoid a repetition of the tit for tat every time the president came. from a different party. . You can see this danger in the Republicans’ immediate calls to investigate Garland.
Few things could be more disruptive to constitutional democracy than using the presidency to bring criminal charges against former presidents. The pragmatic reality underlying a rights-based constitutional system is that the party in power must remember that it too will one day be stripped of power. He must therefore respect the rights of the party that preceded him, not only by principle, but by the practical realization that the whole system will collapse unless both parties follow the rules of mutual respect.
This reality naturally leads one to wonder why the FBI and the Department of Justice took this very aggressive action against Trump. Clearly, if a former president has committed serious crimes, that violates standards and gives reason to investigate.
But no rational prosecutor would think it was a good idea to prosecute a former president unless he could easily be found guilty of something serious. An acquittal would be bad for the rule of law as it would in hindsight suggest that the prosecution had been illegitimate or political. Even a conviction on a relatively insignificant charge would seem politically motivated.
Here, a riddle must be recognized. Obtaining a conviction against Trump for keeping classified documents seems to be very tricky.
He could claim that as president he declassified the documents – an act he would have been within his power to do while in office. So taking them wouldn’t have been a crime. Even if this defense could somehow be overcome, the offense does not seem serious enough to bring charges against a former president who is still eligible to run for president again.
The enigma therefore is why the search warrant was executed. Either prosecutors are seriously considering a charge based on documents; or they feared that classified documents were vulnerable to exploitation in Trump’s vault; or another investigation is ongoing that we are not aware of; or some other motivation is at play.
Before executing a search warrant against a former president, FBI and Justice Department officials would need to get approval from the highest levels. It seems almost inconceivable that Garland was not consulted. That means the decision to up the ante so drastically and publicly in Trump’s criminal investigation was considered, not to say calculated.
In a normal white collar criminal case, the defense attorneys would be outraged by the execution of the search warrant against their client. By carrying it out, prosecutors would send the message that they were treating the defendant with a high degree of contemptuous suspicion and were certainly not anticipating collegiate plea negotiations. It would normally be read as a sign of high confidence on the part of prosecutors that they were going to be able to press charges.
For Garland’s Justice Department, however, the public nature of the raid arguably works a little differently. Garland had to deal with public frustration with Biden over the pace of the investigation. Now, after this raid, neither the president nor the Democratic base can complain that the investigation is not taken seriously.
Coupled with this benefit to the Department of Justice, execution of the warrant requires no subsequent decision to prosecute – no matter what was found. The Attorney General has full prosecutorial discretion.
So don’t assume that this raid means the feds will prosecute Trump. The chances of such a criminal prosecution still remain low.
The risks associated with Trump’s reaction are still very great. A lawsuit could backfire in many ways, including giving Trump greater incentive to run for office and win in order to fend off the lawsuit or its consequences.
Garland knows all of this and remains committed, I believe, to restoring the rule of law and the non-political nature of federal criminal investigations and prosecutions. It is an extraordinarily difficult position. The search of Trump’s Florida home may have simply helped to ensure nothing was left unturned in the investigation, even though no charges are ever brought against Trump.
More from Bloomberg Opinion:
• Trump Search should only be the opening act of Garland: Timothy L. O’Brien
• The Republican boycott of the January 6 panel backfires: Jonathan Bernstein
• Donald Trump knew exactly what he was doing on January 6: editorial
This column does not necessarily reflect the opinion of the Editorial Board or of Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is the author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America”.
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