Filed under: Analysis, Critique, Featured, The State, US
A critical analysis of the neoliberal Center and the Trumpian-Right in the context of the recent FBI raid on Trump’s home in Mar-a-Lago.
At 6:30 AM on Monday, August 8th, the FBI showed up with a search warrant at Mar-a-Lago, Trump’s Florida estate. They were looking for any classified documents or other records that the former president might have illegally taken with him when he left office. The internet promptly went crazy. Trump supporters flooded right-wing channels with claims that politically motivated “weaponization of the law” was turning the US into a “banana republic” – never mind their longstanding demands to prosecute Hillary Clinton over her private email server, a much less serious violation. On the left, Democrats cheered what they are billing as Merrick Garland‘s fearless pursuit of justice, wherever the chase may lead.
On one level, the Democrats have a point. As president, Trump had access to the absolute highest levels of classified information, and if something like, say, plans for the next generation of spy satellites were gathering dust in the back of the Mar-a-Lago loading dock in an unlabeled cardboard box, that would be the most severe violation of classified protocols in US history, by an ex-president no less. In anything like normal circumstances that would be a huge deal in its own right. But circumstances are not normal and this is Trump we’re talking about. It behooves us to dig a little deeper.
Let’s start with Garland. Biden’s attorney general is known as a consummate institutional centrist. A Justice Department memo leaked last month shows he is so committed to the appearance of prosecutorial non-partisanship that any investigation of a political candidate must obtain his personal approval to proceed, continuing a policy instituted by Trump’s last AG, Bill Barr. Despite Garland’s repeated proclamations that no one is above the law and the Justice Department will follow wherever the evidence leads them, it is obvious by now, a year and a half since Trump’s coup attempt, that he has no appetite to indict a former president, especially one who commands a huge nationwide following and is eligible to run again.
In a way, Garland is screwed whichever way he jumps. If he refuses to prosecute Trump for anything, he will enshrine the precedent that presidents are above the law in perpetuity. Indicting Trump on the other hand, might set off a legal war of attrition in which whatever party is out of power would be subject to a barrage of federal investigations and prosecutions. Both courses would be equally damaging to the perception of the rule of law, but giving ex-presidents a lifetime get-out-of-jail-free card would cause far less disruption to the ongoing workings of government. To a technocrat like Garland, who prizes stability above all, door number two is by far the preferred option. If it was up to him, Trump would be home free, but of course there are complications.
As the #January6thCommittee zeros in on the Proud Boys + Oath Keepers who stormed the DC capitol, largely out of view of the public are high ranking military brass who helped grease the wheels of the #J6 attempted coup. An antifascist critical analysis. https://t.co/W8AYWhTNVp
— It's Going Down (@IGD_News) June 11, 2022
The biggest thorn in Garland’s side has to be the January 6th commission. As a temporary partisan body with subpoena authority, the commission can do whatever it wants without concerning itself with long-term considerations. As a Congressional committee it enjoys enormous media attention. And since it is investigating people who have apparently never heard of operational security, it has uncovered a wealth of highly damaging evidence, with more on the way (Alex Jones’ texts, lol). This puts Garland in a bind. As long as he could pretend there wasn’t enough evidence to indict Trump and his flunkies he could, just barely, get away with failing to look for such evidence. Cassidy Hutchinson blew that strategy out of the water over a month ago, and on Monday we saw Garland’s response.
Spoiler alert, Mar-a-Lago didn’t get searched because the FBI all of a sudden got a tip that Trump might not have handled classified information according to the strictest reading of the Presidential Records Act. It’s been known publicly since early in the Biden administration that Trump regularly tore up and tried to discard
presidential documents, and that his staff taped many of them back together before sending them to the National Archives. Maggie Haberman of the New York Times revealed back in February that Trump would regularly attempt to flush torn documents down the White House toilets, frequently clogging them in the process. More generally, Trump’s cavalier approach to classified information (1, 2, 3) was well established long before Biden took office. The first order of business of any half-way conscientious document steward in the new administration should have been to determine what information was missing from the papers Trump turned over and what happened to it. Yet those missing documents sat at Mar-a-Lago for a year and a half, quite possibly propping open the doors to janitors closets, absorbing drips from faulty AC units, housing families of cockroaches, and maybe even being photographed by Mar-a-Lago employees in the pay of Chinese intelligence. If Merrick Garland actually cared about that which he is now pretending to care about, that warrant would have been served months ago.
Viewed strategically though, he made a pretty clever move, and one entirely in character for a centrist triangulator and Harvard valedictorian. Instead of caving in completely by diving into the coup attempt, Garland targeted Trump for a completely different offense, but one serious enough that it can’t be dismissed as a mere distraction. This approach confers a few benefits. For starters, it took everyone by surprise and shifted the terrain. Now there’s a new narrative in play, one controlled by the Justice Department, that leaves everybody else scrambling to adjust. Two, Garland is officially out of the shadow of the January 6th commission. Now he’s playing his own part, instead of being dragged along, kicking and screaming, in the commission’s wake. Three, by going with a search warrant instead of a subpoena, Garland made himself look tough and uncompromising. A bunch of FBI agents descending at dawn on Mar-a-Lago presents a far more aggressive image than a process server delivering a court order, bolstering Garland’s public stance that even ex-presidents aren’t above the law. Four, and probably nearest to Garland’s institutionalist heart, Trump is being investigated not for anything he did as president, but for his actions since leaving office and becoming an ostensibly ordinary citizen. This distinction is not going to cut any ice with Fox News of course, but it will enhance Garland’s credibility inside the Beltway because it shows him attempting to preserve some shred of decorum. Fifth, and perhaps best of all, investigations into mishandling classified material are by definition classified themselves. Garland doesn’t just not have to reveal anything about the progress of his investigation. Better still, he’s not even allowed to. If he decides not to seek an indictment, he only has to say: “Sorry, that’s classified,” to anyone who asks him why the hell not.
FBI searched Trump’s home looking for nuclear documents and other items, according to people familiar with the investigation https://t.co/kbfLiO2veE
— The Washington Post (@washingtonpost) August 12, 2022
For such a cute move, it’s almost a shame it’s not going to work. Garland is attempting the impossible, trying to walk a tightrope that doesn’t exist anymore. He seems not to realize that the right-wing is no longer just trying to win elections, it’s trying to eliminate democracy and take power permanently. Consequently, the old rules of engagement no longer apply. If Trump manages to return to the White House in 2025 with a Republican majority in the Senate, we can fully expect whatever craven lickspittle he appoints as attorney general to use the full weight of the federal law enforcement apparatus to attack Hillary, Biden, and probably Garland himself. The excuse may well be Garland’s current investigation.
If Garland had basic common sense, instead of merely a lawyer’s instinct for loopholes combined with an unshakeable commitment to the status quo, he would be investigating Trump for every single federal crime he committed. Given the abundance of evidence, Trump’s abysmal taste in lawyers, and a DC jury pool comprised in large part of Black people who hate Trump and bureaucrats devoted to order and the rule of law, convictions wouldn’t be that hard to obtain. If Garland had hit the ground running in 2021, he might well have had Trump in federal prison by the time the 2024 presidential campaign got under way, or at least forced him to spend so much time in court he couldn’t campaign effectively. That’s not going to happen of course. Garland might or not indict Trump for violating the Presidential Records Act, or even some more serious crime involving classified information, but even if he does it probably won’t keep Trump out of the presidential race.
Meanwhile, Trump gets to fundraise off the search, and use it to whip his base into a(n even bigger) frenzy. In the worst case scenario, Garland’s attempt to thread a needle with no hole will recharge Trump’s flagging political trajectory (which had been suffering from competition from Ron DeSantis, the January 6th revelations, and lack of a Twitter account) without doing him any lasting legal damage. Proving, for the 687th time, that there is no salvation from above. Somebody tell the liberals…