On Monday, to put it as gently as possible, a former president’s home was involuntarily searched for evidence of criminal conduct and so far as anyone can tell, nothing like it has ever happened before in this country. The FBI conducted an unannounced search of Mar-a-Lago, apparently as part of a criminal investigation into whether Donald Trump mishandled classified information after he left office. It was a legitimately remarkable turn of events both for him and for the nation.
Whatever may or may not happen next, the raid will go down as a significant milestone in this country’s very fraught history of post-presidential accountability. So what can we glean from this development based on the limited information currently available to us?
The investigation is not new, but there is a lot that we still do not know.
The Justice Department’s criminal investigation in this area was reported in the spring, but there has been very little reporting on the pace and scope of the probe since then. The inquiry was evidently prompted by news early this year that the National Archives and Records Administration had recovered 15 boxes of documents from Mar-a-Lago, including classified information, that should have been provided to the archives when Trump left the White House. DOJ reportedly subpoenaed the agency to obtain the records and, according to the Times, sought to interview “people who worked in the White House in the final days of Mr. Trump’s presidency” as part of the probe.
The search of Trump’s Florida residence apparently did not come out of the blue. According to CNN, the FBI interviewed “aides to Trump at Mar-a-Lago” as part of the investigation in the spring, and in June, investigators visited the property to speak with Trump’s lawyers about classified information in his possession. Trump himself reportedly popped in to say hello.
Exactly what happened between then and Monday is a mystery at the moment. As some observers have already noted, the search of Trump’s home would seem to be a drastic step to take as part of an open-ended investigation into the potential mishandling of classified information by a former president, particularly since he and his lawyers were already well aware of the investigation. This means that they had plenty of time and opportunity to remove or destroy documents if they had really wanted to.
One possibility (among many) that has been bandied about is that the search concerns more than just classified documents, but at the moment, there is no serious reporting to suggest that is the case. Another possibility is that the FBI has reason to believe that there is something particularly sensitive that remains in Trump’s possession and that they thought it was incumbent to secure that material as quickly as possible. Still another possibility — and these are not mutually exclusive — is that the Justice Department was attempting to work cooperatively with Trump and his lawyers to get material off the property but ultimately came to the view, perhaps based on what happened during the reported meetings in June or otherwise, that they could not rely on the representations, responsiveness, or good faith of Trump and his lawyers, and that they needed to search the premises themselves pursuant to a court order.
In much more routine criminal investigative settings, this happens from time to time when the Justice Department has first tried to obtain voluntary cooperation from someone but feels like it may have hit a wall and perhaps no longer trusts the lawyers or the party it has been dealing with. One objective of getting a search warrant in that case — not necessarily the principal one, but a significant one all the same — is for the government to reestablish a sense of hierarchy between investigators and the party in question, to remind them that the government has its own tools to obtain information through potent and involuntary legal channels and does not need to rely on the other side, particularly if they seem to be dragging their feet on purpose.
Reminder: Trump and Republicans are not dispassionate observers.
It should go without saying, but the subject and potential target of a criminal investigation is generally not the most reliable source for news about the progress of the inquiry or the professional comportment of investigators. This principle is all the more important to bear in mind when dealing with someone as notoriously unreliable and fluent in the mechanics of criminal investigations as Donald Trump.
We saw this on Monday itself, when Trump took it upon himself to confirm the search. The first sentence of his statement claimed that Mar-a-Lago was “currently under siege, raided, and occupied by a large group of FBI agents,” but the agents who conducted the search appear to have been gone by the time the statement went out. He also did not disclose the fact that the Justice Department had evidently been at his home months earlier attempting to work cooperatively with him and his lawyers, which substantially undercuts any suggestion, as Trump put it, of “prosecutorial misconduct,” much less “the weaponization of the justice system” or “an attack by radical left Democrats who desperately don’t want me to run for president in 2024.”
This self-aggrievement on the part of Trump was not exactly surprising, nor was the widespread condemnation of the search by Republican politicians and operatives that began almost immediately after the news broke. Trump seems to believe — or perhaps just wants to look like he believes — that it is good for him politically if the Justice Department is pursuing him.
So as this all continues to unfold — as Trump continues to make statements and perhaps talk to reporters, and as Trump-supporting Republicans continue to weigh in publicly — it is worth bearing in mind Steve Bannon’s infamous distillation of the Trumpian media ethos: “The Democrats don’t matter. The real opposition is the media. And the way to deal with them is to flood the zone with shit.” Expect a lot of it.
Merrick Garland has fundamentally changed the discussion about the department’s approach.
The last few weeks have seen a rapid succession of notable developments in the Justice Department’s dealings with Trump. Even before Monday, we had learned that prosecutors had subpoenaed two of Mike Pence’s former advisers as well as Trump’s White House counsel. Those developments appeared to relate to whatever it is that currently constitutes the Justice Department’s separate criminal investigation concerning the siege of the U.S. Capitol and efforts to overturn the election.
It is possible that all of this activity, including the search on Monday, was spurred or accelerated thanks to the political and public pressure created by the House’s January 6 hearings this summer, which prompted many observers and Democrats in Congress to question whether the Justice Department under Attorney General Merrick Garland was moving too cautiously in dealing with Trump. Nobody at the department is likely to admit anything like this anytime soon, if ever, and it is also possible that this all would have happened regardless. If nothing else, the search of Trump’s home, which would’ve had to have been authorized at the highest levels of the Justice Department, is a stark reminder that the department can take certain steps — like preparing for a historically unprecedented search of a former president’s property — outside of public view.
Whatever the case may be, the search of Trump’s home represents a significant new chapter in this public saga, and it requires adjusting our baseline assumptions about Garland’s resolve and about his willingness to entertain extraordinary political controversy as part of his job. Needless to say, it remains far from clear that Trump will ever be criminally charged by the Justice Department for anything, but the possibility is less easy to write off today than it was 24 hours ago.