To obtain the warrant that it used to search Donald Trump’s home at his Palm Beach resort on Monday, New York Times reporter Peter Baker says in a “news analysis,” the FBI would have been “required to meet a high level of proof of possible crimes.” That is a strange way to describe probable cause, an ill-defined standard that falls far short of the evidence needed to convict someone of a crime.
Baker’s mischaracterization of probable cause reflects the misplaced deference to the FBI that Trump’s opponents tend to display in cases involving the former president. Journalists who would be critical of the FBI in other contexts, such as the investigation of Hillary Clinton’s email practices as secretary of state, abandon all skepticism when the bureau targets Trump or his associates. Baker, whose (correct) thesis is that Trump criticizes politicized law enforcement only when it works to his disadvantage, seems blithely unaware of the corresponding hypocrisy among people who despise Trump.
Baker acknowledges the FBI’s “history at the intersection of politics and investigations,” which is a pretty polite way to put it. “Under J. Edgar Hoover, its longtime director, the bureau bugged and pursued domestic opponents of the federal government, at times serving as a political tool of various presidents of both parties,” he writes. But he implies that such abuse is a thing of the past.
“With revelations of past abuses after Hoover’s death in 1972, Congress and the F.B.I. sought to cast off the bureau’s history and transform it into a more professional, politically neutral organization,” Baker writes. Thanks to those reforms, he says, “the bureau earned the respect of both parties and many Americans in the last half-century.”
Sadly, Baker adds, “that built-up store of public credibility has eroded significantly in the Trump years. The proportion of Americans who told Gallup pollsters that they thought the F.B.I. was doing a good job fell from 57 percent in 2019 to 44 percent in 2021.” The blame, Baker thinks, lies with Trump: “In Mr. Trump’s first year in office, as he attacked the F.B.I. over the Russia investigation, the share of Republicans who had a favorable view of the bureau fell to 49 percent from 65 percent in surveys by the Pew Research Center while remaining steady among Democrats at 77 percent.”
Gallup’s polling also finds a partisan gap in attitudes toward “the police,” but there the pattern is reversed. Overall, according to a survey conducted in June, 45 percent of Americans have “a great deal” or “quite a lot” of confidence in the police—the lowest level recorded “in at least three decades of measurement.” But while 67 percent of Republicans expressed that attitude, just 28 percent of Democrats did.
Unless you think local police are for some reason less prone to abuse their powers than the FBI is (or vice versa), those partisan gaps are pretty hard to understand as a matter of principle. Republicans and Democrats both seem highly selective in their skepticism. While Baker is probably right that politics explains that puzzle, he is paying attention to just half of the picture.
Harvey Silverglate, a longtime Massachusetts defense attorney and civil libertarian, offers a rather different take on the bureau in a Compact essay titled “Abolish the FBI.” Silverglate, a Reason contributor who served on the board of his state’s American Civil Liberties Union (ACLU) chapter for several decades and co-founded what is now the Foundation for Individual Rights and Expression, has documented the awesome power that the FBI and the Justice Department wield thanks to the proliferation of federal felonies.
“Few in either the executive or legislative branches of the federal government, and few even in state and local law-enforcement agencies as well as those occupying state political offices, are inclined to do anything to incur the bureau’s wrath,” Silverglate writes. “This is because of the breadth and vagueness of federal criminal statutes and the numerous regulations enacted pursuant to those statutes.”
Silverglate thinks the FBI has proven itself so untrustworthy in exercising its powers that it should be scrapped and replaced by an entirely new agency. During his years with the ACLU, he says, “I heard scores of stories of FBI misconduct, including setting up innocent individuals with palpably false accusations of criminal violations. At the same time, the FBI overlooked the acts of the certifiably guilty.”
Silverglate notes the bureau’s notorious collaboration with the Boston gangster Whitey Bulger and illegal searches ordered by FBI Associate Director Mark Felt (who ironically was the main source for the Washington Post investigation that led to Richard Nixon’s resignation). He also describes a meeting with Robert Mueller, who ran the FBI from 2001 to 2013, when Silverglate was representing former Army doctor Jeffrey McDonald, “whose conviction and life sentence for the 1970 murder of his wife and two young daughters while stationed at Fort Bragg, NC, had proved very controversial, due in large part to FBI misconduct.” According to Silverglate, Mueller abruptly ended the meeting at the outset by declaring that “criticism of the bureau is a non-starter.”
As that incident suggests, the problem with the FBI nowadays is not so much overt politicization as arrogance combined with broad powers and incompetence. On the same day that the Times ran Baker’s piece, which portrays an FBI that lives up to its motto of “fidelity, bravery, integrity,” the paper noted the retrial of Barry Croft and Adam Fox, who are accused of participating in a plot to kidnap Michigan Gov. Gretchen Whitmer. In their first trial, the jury failed to reach a verdict on the counts against them while acquitting two alleged co-conspirators after hearing evidence of unseemly behavior and entrapment by FBI agents and informants.
“Prosecutors Face Distrust in Second Try to Prove Plot to Kidnap Michigan’s Governor,” says the Times headline. The subhead notes that the first trial raised “questions about the F.B.I.’s tactics,” which again is putting it mildly.
After his unpleasant encounter with Silverglate, Mueller went on to serve as the special counsel in charge of investigating Trump’s allegedly nefarious ties to Russia. Although those charges inspired hopeful credulity in the mainstream press, the two-year investigation found no evidence to support them.
Trump and his supporters, who see the Russia investigation as a politically inspired “witch hunt,” like to note the bias illustrated by communications between FBI agent Peter Strzok and FBI lawyer Lisa Page, his girlfriend at the time. Yet even Strzok, who called Trump an “idiot” and rooted against him in 2016, was skeptical of the Russian collusion allegations. “I hesitate in part because of my gut sense and concern there’s no big ‘there’ there,” he told Page.
It turned out that Strzok’s gut was right, and that experience colored how Trump’s supporters perceived all subsequent allegations against him, even when they were much better-grounded. As Reason‘s Elizabeth Nolan Brown notes, blind loyalty to Trump transforms Republicans from staunch defenders of law enforcement into harsh critics. Meanwhile, Democrats, who historically were more inclined to question the tactics of agencies like the FBI, swallow those doubts when it looks like Trump might finally get the comeuppance they think he richly deserves.
None of this means there was no legal basis for the Mar-a-Lago search, which apparently was aimed at recovering government documents, including classified material, that Trump improperly took with him when he left the White House. As defense attorney and former federal prosecutor Ken “Popehat” White notes, “federal magistrate judges tend to require relatively thorough, specific, and well-documented [warrant] applications, as opposed to state judges, who will generally sign a warrant that looks like something Gary Busey blew out of his nose after Fourth of July weekend.”
In other words, White thinks it likely that U.S. Magistrate Judge Bruce Reinhart, who approved the warrant, was careful to make sure that the FBI had probable cause to believe the search would discover evidence of criminal activity. According to the Supreme Court’s definition of probable cause, that meant there was “a fair probability” or “substantial chance” of finding such evidence. As White suggests, that standard is more demanding than the one that state judges often apply in practice. But it is far less demanding than the “preponderance of the evidence” standard that applies in civil cases, let alone the proof beyond a reasonable doubt required for a criminal conviction.
Without seeing the warrant, we can’t say for sure which laws the FBI thought had been broken. But there are several likely candidates, including 18 USC 641, which applies to someone who “disposes of any record” belonging to the U.S. government; 18 USC 2701, which applies to someone who “conceals, removes, mutilates, obliterates, or destroys” such a record; and 18 USC 793, which applies to someone who mishandles classified information. All of those are felonies. If Trump lied to the FBI by, for example, falsely claiming that he had returned all purloined documents that belonged with the National Archives under the Presidential Records Act, that’s another felony.
You can start to see Silverglate’s point about “the breadth and vagueness of federal criminal statutes.” But the fact that certain conduct can be treated as a federal crime does not necessarily mean that it will be. In the Clinton case, FBI Director James Comey famously decided that her “extremely careless” handling of “very sensitive, highly classified information” did not justify charging her under 18 USC 793, even though the crime described by that law includes “gross negligence.”
Trump, whose frequent demands that Clinton be imprisoned inspired “lock her up!” chants from his supporters in 2016, was outraged by that decision. But now that the shoe is on the other foot, he might take comfort from Comey’s reasoning:
Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case….In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.
The discretion that Comey exercised in Clinton’s case further illustrates Silverglate’s argument that the vast scope of federal law empowers the FBI to arrest nearly anyone (or not) based on arbitrary, subjective, and possibly biased judgments. At the same time, it suggests that even if Trump’s treatment of classified material was “extremely careless,” prosecuting him would not be justified without aggravating circumstances like those cited by Comey.
Writing in the Times, former federal prosecutor Ankush Khardori argues that the Justice Department, despite its reluctance to discuss ongoing investigations, can and should tell the public more about the justification for the Mar-a-Lago search, including “the topical scope and nature of the department’s work as it relates to Mr. Trump and his administration.” Without such a disclosure, he says, “the public may struggle to separate fact from fiction or know what information it can trust. Mr. Trump’s supporters have decried the supposedly unwarranted, heavy-handed tactics of the department, portraying him as the victim of a political witch hunt at the hands of the opposing party. And much of the liberal legal commentary on Mr. Trump that you’ll find on the cable news networks turned out to be wrong before.”
CNN reports that the FBI had previously recovered “sensitive national security documents” from Mar-a-Lago based on a grand jury subpoena. If the main goal of this week’s search was securing additional classified material, the FBI chose a very provocative way to do that. When federal agents search the home of a former president who is the leading contender to oppose the current president in the next election, they had better have a very good reason, since charges of political motivation are inevitable.
Baker notes that President Joe Biden “has not publicly demanded that the Justice Department lock up Mr. Trump the way Mr. Trump publicly demanded that the Justice Department lock up Mr. Biden and other Democrats.” He adds that no one has “knowledgeably contradicted the White House statement that it was not even informed about the search at Mar-a-Lago beforehand, much less involved in ordering it.”
Those assurances, of course, will carry zero weight with Trump’s most loyal supporters. But even Americans who are not particularly fond of Trump will naturally wonder about the propriety and necessity of such an unprecedented search.
If the FBI was seeking evidence that could support criminal charges against Trump, it would be nice to have some clue as to what those charges might be. Without that information, it is hard to assess whether the FBI’s tactics were “unwarranted” and needlessly “heavy-handed,” as they frequently have proven to be in other cases.
“We shouldn’t let former leaders get away with whatever they want just because the optics of investigating them [look] bad,” Nolan Brown noted after the raid. “But there better be something bigger here than simply taking some documents.” So far, it does not look that way.
Update: Attorney General Merrick Garland today announced that the Justice Department has asked a judge to unseal the Mar-a-Lago warrant in light of the furor provoked by Trump’s description of the search. “The public’s clear and powerful interest in understanding what occurred under these circumstances weighs heavily in favor of unsealing,” the DOJ’s motion says. “That said, the former President should have an opportunity to respond to this Motion and lodge objections, including with regards to any ‘legitimate privacy interests’ or the potential for other ‘injury’ if these materials are made public.”
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