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Law & Ordure

Donald Trump Is Not Above the Law

Conservatives are complaining that the FBI’s search of Mar-a-Lago was an egregious abuse of power. But the former president is just a Florida Man now.

Former U.S. President Donald Trump walks the driving range during day two of the LIV Golf Invitational at his Bedminster, NJ resort.
Jared C.Tilton/Getty Images
Former U.S. President Donald Trump walks the driving range during day two of the LIV Golf Invitational at his Bedminster, NJ resort.

There is not much to say about the FBI’s search of Mar-a-Lago on Tuesday itself since we know relatively little about it. The New York Times reported that it was related to former President Donald Trump’s alleged removal of classified documents after leaving the White House last year, not the January 6 investigations or any of the former president’s other legal woes. Some accounts indicate that the search was narrowly focused on specific materials; Trump would have received a copy of the search warrant he was issued, but he has not released it to the public yet. The mere fact that a search warrant was issued does not automatically mean that criminal charges are necessarily following, so it’s not yet clear if Trump is in serious jeopardy here.

What’s more interesting at the moment is how the conservative political ecosystem responded to the surprising news. They were, to put it lightly, not happy. Texas Senator Ted Cruz described it as “corrupt and an abuse of power.” Florida Governor Ron DeSantis, a potential Trump alternative for the GOP in 2024, claimed it was “another escalation in the weaponization of federal agencies against the Regime’s political opponents.” (It’s unclear who “the Regime” is.) House Minority Leader Kevin McCarthy vowed to investigate the Justice Department in retaliation if Republicans retake the House this fall. Others called for the FBI itself to be defunded.

Pro-Trump conservatives eventually coalesced around a few talking points after the initial shock wore off. The most common one from top Republicans was that the FBI’s search of Mar-a-Lago was somehow a threat to regular Americans. “If the FBI can raid a U.S. President, imagine what they can do to you,” New York Representative Elise Stefanik wrote on Twitter on Tuesday morning. A Twitter account for the House Judiciary Committee’s GOP members shared an almost identical talking point the night before: “If they can do it to a former President, imagine what they can do to you.” And Cruz, in the tweet I mentioned earlier, added that “they’re ​​coming for YOU too.”

This is unpersuasive on two levels. First, the FBI—and every single other law-enforcement agency in the country—already does this to regular Americans every day of the week. I can’t find reliable statistics on how many federal search warrants are executed annually in the United States, and that data may not exist anywhere because the state of U.S. criminal justice statistics is so abysmal. But the figure must be, at the absolute bare minimum, in the hundreds of thousands each year.

Federal judges, for example, approved roughly 20,000 “delayed-notice” search warrants in 2021, and those types of warrants are considered to be exceptional rather than standard. And this is just at the federal level—thousands of state, local, and tribal police forces across the country also have the power to obtain search warrants from judges in their respective jurisdictions. Since the non-federal criminal justice system dwarfs the federal one, it’s reasonable to hypothesize that the number of non-federal search warrants is similarly massive. In short, Trump’s experience is one that is already shared by millions of Americans each year.

Second, and just as importantly, the FBI should be able to execute lawful search warrants against former presidents. Trump spent his presidency arguing before judges that whoever happens to be president should be broadly immune from civil litigation, criminal investigations, and congressional oversight while in office. The courts, up to and including the Supreme Court, largely rejected that view. Trump has also repeatedly suggested, again without affirmation from any court, that he possesses some kind of residual presidential aura even after leaving office, entitling him to executive privilege—which he attempted to invoke last year over January 6-related documents.

It’s true that ex-presidents get some special perks such as a pension and lifetime Secret Service protection. But they don’t get these things because they are some sort of super-citizen. Congress created the presidential pension because it thought Harry Truman was near penury after leaving office in the 1950s, and it granted lifetime Secret Service protection because people often try to kill presidents and ex-presidents. Four of the only forty-five people to ever hold the job were murdered in office—a death rate that is far higher than that of lumberjacks, the next deadliest profession in the United States. This is not special treatment; it is justified by the nature of the job.

It’s worth noting here that federal law enforcement agencies already do give some special treatment to presidential candidates and other elected officials. The Justice Department, as a matter of policy, does not make significant moves in criminal investigations that involve political figures in a roughly 90-day window before an election. (The Mar-a-Lago search took place 93 days before the November midterms.) That modest privilege is to ensure that the department’s actions are not taken as meddling in the election itself. This was already a good idea before then-FBI director James Comey reopened the Hillary Clinton inquiry a fortnight before Election Day in 2016, and it’s an even better one now. Even in these instances, however, this leeway is more for the benefit of the American people than the targets themselves.

All of this is to say that Donald Trump is, constitutionally speaking, just a guy. He is not some European monarch whose royal dignity immunizes him from the laws that bind everyone else, nor is he some British noble who can only be tried by the House of Lords. He may be a somewhat rich and influential guy, which gives him certain advantages when facing the criminal justice system that other Americans do not possess. But the alternative proposition to the GOP’s assertions would be that Trump is above the law. If that principle does not apply to presidents, then it certainly does not apply to ex-presidents either. Nor would applying it actually safeguard Americans’ liberties, as Republicans have insinuated. If anything, the opposite proposal of giving get-out-of-jail-free cards to elected officials would be the greater danger.

Another theme in conservatives’ reactions so far is that searching Trump’s home makes the United States a “banana republic” or a “third-world country.” Among those making the comparison were DeSantis, various members of Congress, and multiple pundits. Florida Senator Marco Rubio claimed that the search was something that only happened in “third-world Marxist dictatorships [...] but never before in America.” The implication here is that investigating top political figures is something that only happens in non-democratic countries and is one step removed from autocracy.

Nothing could be further from the truth. In other democratic countries, political leaders can and do face criminal investigations and trials for their alleged misdeeds. South Korea impeached and tried then-President Park Geun-hye in 2017 and 2018 over corruption allegations, for which she served five years in prison out of a more-than-twenty-year sentence. A French jury convicted former President Nicolas Sarkozy last year on campaign-finance charges, effectively ending his political career. The legal troubles of former Italian Prime Minister Silvio Berlusconi are so extensive that they defy casual description; Wikipedia dedicates an entire article to them with more than two dozen subsections.

Why hasn’t the United States had a similar experience? This country routinely prosecutes governors and members of Congress. In fact, the U.S. has come close to the question of prosecuting a president at least twice in its history. John Tyler, who served as president in the early 1840s, later joined the Confederacy during the Civil War and won election to its so-called House of Representatives in 1861. Had he not died almost immediately thereafter, Tyler could have been arrested and charged for his role in the rebellion after the war’s end. More recently, Richard Nixon would have almost certainly faced charges for his role in the Watergate crisis had he not been pardoned by his successor Gerald Ford. That set a precedent of impunity that only Trump’s persistent lawlessness has been able to shake.

Naturally, all of this discussion assumes that the Justice Department conducted their search for legitimate reasons and with sufficient probable cause. If they didn’t, then all bets are off. But investigators would have had to convince a federal judge of exactly that when they applied for the search warrant, and a warrant against a former president would almost certainly receive more scrutiny. Investigators would have also had to get approval from Attorney General Merrick Garland, who is himself a former federal judge, and also from FBI Director Christopher Wray, a registered Republican who was Trump’s own choice to lead the bureau after he fired Comey in 2018. This is not exactly the crew you would assemble for a partisan stitch-up.

In any event, if conservatives are truly and earnestly alarmed by the Mar-a-Lago search, then they might want to consider appointing fewer Supreme Court justices who vote to give sweeping impunity to U.S. law enforcement officials when they allegedly violate a person’s constitutional rights. They might also want to reckon with Trump’s own demands to wield the Justice Department and the FBI against his political enemies, which he may be better poised to do if he wins another term. And they might want to consider choosing a presidential nominee with slightly stronger commitments to the rule of law in 2024. Until then, the right’s cries of “you can’t do this” sound a lot more like “you can’t do this to us.”