Without knowing what the Department of Justice has learned about former President Donald Trump’s conduct, it’s impossible to say whether searching his home in Mar-a-Lago was justified. Before all the facts are in, however, it’s crucial to understand that the verdict on this action and what follows can’t rest only on what the law says. Attorney General Merrick Garland and his officials also had to be sure that they were acting — and would in due course be seen as having acted — in the public interest.
Assuming they had solid legal grounds for doing what they did, this second test is still extremely demanding. I’m hoping it wasn’t just ignored.
You might well ask: How can investigation and prosecution of crimes ever fail to be in the public interest? Very easily. A conscientious effort to prosecute every crime to the fullest extent of the law might leave surprisingly few Americans at liberty. This country has built such a vast constellation of criminal offenses that prosecutorial discretion — that is, choosing not to prosecute — is not so much a function of limited resources as something that justice actually requires.
According to reports, the crimes Trump possibly committed might include such heinous acts as keeping a letter former President Barack Obama left for him in the Oval Office. No doubt that’s multiple counts of something all by itself. In the U.S. it’s easy to commit crimes without realizing it, and sometimes difficult not to. (Read “Three Felonies a Day” by Harvey Silverglate.) So-called reform prosecutors make a related point about the public interest in their argument for less zealous prosecution — though I expect few will be rushing to Trump’s defense.
Regardless, the point stands: Prosecuting crimes to the fullest extent of the law is not just impracticable in the U.S. In many cases, it’s also unjust.
Granted, a president who, say, conspires to commit electoral fraud is a much more serious offender than the occasional user of recreational drugs. And part of what defines a free country is that political leaders aren’t seen, and don’t see themselves, as above the law. In some ways, the public interest demands that they be held to a higher standard than everybody else. (You might overlook a neighbor who hosts a party during a pandemic lockdown; it’s harder to forgive a prime minister who breaks his own law while enforcing it on others.)
At any rate, the seriousness of the alleged crime has a bearing on the public-interest calculation. The Justice Department’s “Principles of Federal Prosecution” say as much. On whether to initiate or decline charges, they also say this: “In assessing the seriousness of the offense … the prosecutor may properly weigh such questions as whether the violation is technical or relatively inconsequential in nature and what the public attitude may be toward prosecution under the circumstances of the case.”
I hope National Review’s Andrew McCarthy’s speculation is right, that the search at Mar-a-Lago is about knowingly illegal efforts to overturn the election — a grave crime — and that the putative violation of document-retention rules is, as they say, pretextual. Recent reports suggest the focus is on the mishandling of classified documents; that could pose a threat to national security and might also satisfy the public-interest test.
Serious offenses demand accountability. But former presidents can be held accountable in many ways, and it’s a further step to say their misconduct should trigger the automatic application of the criminal law.
In a country with a credibly nonpartisan criminal-justice system, the answer would be easy: Just prosecute. The effort might succeed or fail, depending on the strength of the evidence, but whatever the outcome, the collateral damage would be limited.
In America, however, the criminal-justice system is no longer trusted to stand above politics. Actually, it’s no longer even asked by either side of a deeply divided country to try: More important values are deemed to be at stake. What a truly toxic combination. The system grants prosecutors enormous power and discretion, and the loudest voices insist they be applied to nakedly political goals.
Set aside the difficulties of sustaining a successful prosecution of Trump. (Regardless of the charges, they’re daunting.) Instead, focus on Garland’s most important task: repairing the reputation of a tainted and dangerously politicized criminal-justice system. Above all, this demands caution and restraint — something that the FBI’s visit to Mar-a-Lago did not convey. Perhaps, once all the facts are known, it will be clear that Garland and his officials conducted themselves … judiciously. If not, they’ll have moved the country another step closer to constitutional collapse.
Clive Crook is a Bloomberg Opinion columnist and member of the editorial board covering economics. Previously, he was deputy editor of the Economist and chief Washington commentator for the Financial Times.