Never Before in American History: The F.B.I. Searches a Former President's Home

[Leroy N. Soetoro]

The search of former President Donald J. Trump’s Mar-a-Lago estate is a
high-risk gamble by the Justice Department, but Mr. Trump faces risks of
his own.

https://www.nytimes.com/2022/08/09/us/politics/trump-fbi.html

WASHINGTON — The fight between former President Donald J. Trump and the
National Archives that burst into the open when F.B.I. agents searched Mr.
Trump’s Palm Beach estate has no precedent in American presidential
history.

It was also a high-risk gamble by Attorney General Merrick B. Garland that
the law enforcement operation at Mar-a-Lago, the former president’s
sprawling home in Florida, will stand up to accusations that the Justice
Department is pursuing a political vendetta against President Biden’s
opponent in 2020 — and a likely rival in 2024.

Mr. Trump’s demonization of the F.B.I. and the Justice Department during
his four years in office, designed to undermine the legitimacy of the
country’s law enforcement institutions even as they pursued charges
against him, has made it even more difficult for Mr. Garland to
investigate Mr. Trump without a backlash from the former president’s
supporters.

The decision to order Monday’s search put the Justice Department’s
credibility on the line months before congressional elections this fall
and as the country remains deeply polarized. For Mr. Garland, the pressure
to justify the F.B.I.’s actions will be intense. And if the search for
classified documents does not end up producing significant evidence of a
crime, the event could be relegated by history to serve as another example
of a move against Mr. Trump that backfired.

Mr. Trump faces risks of his own in rushing to criticize Mr. Garland and
the F.B.I., as he did during the search on Monday, when he called the
operation “an assault that could only take place in broken, Third-World
Countries.” Mr. Trump no longer has the protections provided by the
presidency, and he would be far more vulnerable if he were found to have
mishandled highly classified information that threatens the nation’s
national security.

A number of historians said that the search, though extraordinary, seemed
appropriate for a president who flagrantly flouted the law, refuses to
concede defeat and helped orchestrate an effort to overturn the 2020
election.

“In an atmosphere like this, you have to assume that the attorney general
did not do this casually,” said Michael Beschloss, a veteran presidential
historian. “And therefore the criminal suspicions — we don’t know yet
exactly what they are — they have to be fairly serious.”

In Mr. Trump’s case, archivists at the National Archives discovered
earlier this year that the former president had taken classified documents
from the White House after his defeat, leading federal authorities to
begin an investigation. They eventually sought a search warrant from a
judge to determine what remained in the former president’s custody.

Key details remain secret, including what the F.B.I. was looking for and
why the authorities felt the need to conduct a surprise search after
months of legal wrangling between the government and lawyers for Mr.
Trump.

The search happened as angry voices on the far-right fringe of American
politics are talking about another Civil War, and as more mainstream
Republicans are threatening retribution if they take power in Congress in
the fall. Representative Kevin McCarthy of California, the Republican
leader in the House, warned Mr. Garland to preserve documents and clear
his calendar.

“This puts our political culture on a kind of emergency alert mode,” said
Douglas Brinkley, a presidential historian at Rice University. “It’s like
turning over the apple cart of American politics.”

Critics of Mr. Trump said it was no surprise that a president who
shattered legal and procedural norms while he was in the Oval Office would
now find himself at the center of a classified documents dispute.

For nearly 35 years, the tug of war over presidential records — and who
controls them — has been a largely bureaucratic one waged in the halls of
the National Archives and debated among lawyers in courtrooms.

Former President Richard M. Nixon spent nearly four years after Watergate
fighting for control over millions of pages of presidential records and
hundreds of hours of the audiotapes that helped force his resignation. Mr.
Beschloss said that Nixon initially reached a deal with President Gerald
R. Ford that would have given him control over his papers as well as the
ability to destroy them. But an act passed by Congress after Nixon left
office in August 1974 forced him to take his fight to court. He eventually
lost in the Supreme Court, in a 7-to-2 decision.

The dispute led to the passage in 1978 of the Presidential Records Act,
which for the first time made it clear that White House records are the
property of the federal government, not the president who created them.
Since then, presidents from both parties have haggled over how and when
the archives may release those documents to the public.

Presidents and their aides have also been subjected to other laws
concerning the handling of classified information. Over the years, a
handful of top federal officials have been charged with illegally handling
classified information.

David H. Petraeus, the Army general who served as C.I.A. director under
former President Barack Obama, admitted in 2015 that he provided his
highly classified journals to his lover, pleading guilty to one count of
unauthorized removal and retention of classified material, a misdemeanor.

Sandy Berger, who was national security adviser for former President Bill
Clinton, paid a $50,000 fine after pleading guilty to removing classified
documents from the National Archives in 2003 to prepare for his testimony
to the 9/11 Commission.

But there has never been a clash between a former president and the
government like the one that culminated in Monday’s search, said Lee
White, the executive director of the National Coalition for History.

Mr. White, who has met frequently over the years with officials at the
National Archives, said they usually work hard to resolve disagreements
about documents with former presidents and their advisers.

“They tend to be deferential to the White House,” Mr. White said of the
lawyers at the National Archives. “You know, these questions come up about
presidential records and they are like, ‘Look, our job is to advise the
White House.’ But they are not, by nature, an aggressive group of
attorneys.”

Mr. Beschloss and Mr. Brinkley both said the search of Mr. Trump’s house
had the potential to become a flash point in the struggle between those
investigating the former president’s actions and the forces who supported
Mr. Trump’s frantic efforts to stay in office.

But they said there were also risks for Mr. Trump and his allies on
Capitol Hill, who on Monday rushed to attack Mr. Garland and the F.B.I. in
the hours after the search.

“You now have Kevin McCarthy — something else we’ve never seen before in
history — making ugly threats to an attorney general, obviously trying to
intimidate him,” Mr. Beschloss said.

Mr. Trump’s defenders did not wait to find out what evidence the F.B.I.
found or even sought before using the search to ratchet up longstanding
grievances that the former president stoked throughout his time in office.
Senator Marco Rubio, Republican of Florida, quickly distributed a short
video on Twitter accusing the Biden administration of acting like the
regime of a dictator in a third-world country.

“This is what happens in places like Nicaragua,” Mr. Rubio said in the
video. “Where last year every single person that ran against Daniel Ortega
for president, every single person that put their name on the ballot, was
arrested and is still in jail.”

“You can try to diminish it, but that’s exactly what happened tonight,”
Mr. Rubio said.

The historians said the events are a test of the resilience of American
democracy when it is under assault.

“We are in the middle of a neo-civil war in this country,” Mr. Brinkley
said. “This is a starkly unprecedented moment in U.S. history.”



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