Photo-Illustration: Intelligencer; Photo: Chet Strange/Getty Images
the national interest

What Is Really Unprecedented Is the Criminality

Republican outrage to the raid on Trump is telling.

Photo-Illustration: Intelligencer; Photo: Chet Strange/Getty Images

In response to the FBI raid on Mar-a-Lago, as is often the case, the revealing statements in the Republican Party come not from the fringe actors calling for civil war or defunding the FBI but the respectable statesmen in the mainstream. “No former President of the United States has ever been subject to a raid of their personal residence in American history,” complains Mike Pence on Twitter. “The idea that a law enforcement organization under a sitting president would raid the home of his predecessor, opponent in the previous election, and potential opponent in the next election, has no close parallel in American history,” editorializes National Review.

While it is factually true that there is no history of a former American president being raided by the Feds, these observations implicitly treat the FBI’s behavior as the source of the historic break. The reason Donald Trump is the first former president to be treated like a criminal is that he is the first former president who is a criminal.

We don’t know what evidence the FBI may have obtained when it searched for classified documents at Mar-a-Lago. Not even Trump’s most delusional acolytes doubt he repeatedly and flagrantly violated the Presidential Records Act by bringing boxes of White House material to Florida. It’s entirely possible this will be the only offense that is uncovered by the raid.

The Republican view of this has always been that record-keeping protocols by high-ranking members of the executive branch are matters of the utmost seriousness and that violations of it ought to be prosecuted to the full extent of the law. National Review treated the FBI’s preelection announcement of an investigation into Hillary Clinton, over whether she mishandled classified information with her emails, not as a case of FBI abuse but as a devastating indictment of Clinton, and it was still publishing stories two years later insisting she ought to have been criminally charged. Of course, those anti-Clinton arguments have always been bad. It would be wrong for Attorney General Merrick Garland to adopt the conservative movement’s rigid and unprincipled 2016 position and apply it to Trump.

But there is no reason to assume either that Trump’s potential offenses are limited to breaches of record-keeping restrictions or that the FBI has used these offenses as a pretext to lock him up. The FBI director, Christopher Wray, was nominated by Trump, and while he turned out to operate like a traditional Republican rather than a MAGA acolyte, this hardly makes him a presumptive partisan. Garland, who was confirmed with Republican support and has a deep streak of institutionalist caution, has treated Trump’s misconduct with consistent restraint.

And Trump has spent his life skirting the edges of the law. The New York Times reported that he and his father, Fred Trump, engaged in an elaborate fraud, including setting up fake companies with phony receipts, to allow Fred to funnel money to Donald illegally. Other reporters have found Trump continuing to use false accounting and abuse charitable donations in order to illegally enrich himself.

The Trump presidency was a long parade of alarmed subordinates reporting on his contempt for the rule of law and obsessive avoidance of any evidence that might implicate him in wrongdoing. He has berated lawyers for taking notes in his presence, citing the positive example of Roy Cohn, a lawyer he shared with several leading mobsters. It seems at least possible, even downright likely, that Trump’s paranoia about written evidence, which extended to flushing documents down the toilet, reflected something deeper than mere sloppiness. He certainly behaved like a man who had things to hide.

None of the Republican responses has left any room at all for such a possibility. Not only have they discarded their old Clinton’s emails–era view of record-keeping laws, they have pretended as if it is not even possible Trump could be guilty of a crime. “The raid of MAL is another escalation in the weaponization of federal agencies against the Regime’s political opponents,” hyperventilates Ron DeSantis, as if every leading Republican in America has roughly the same criminal exposure as a man who used to hang out with mobsters and boasted in public about bribing politicians.

If a Trump prosecution risks setting off some deeper crisis in the system, that is because Republicans formed a loyalty to a man who rose to his position by flouting the law. This is not the FBI’s fault. If Republicans don’t want the humiliation of a former president their base adores facing potential prosecution, they should have chosen a president who wasn’t a lifelong crook.

What Is Really Unprecedented Is Trump’s Criminality