“Upholding the rule of law means applying the law evenly, without fear or favor,” Attorney General Merrick Garland said Aug. 11, 2022, after the FBI searched Donald Trump’s residence at Mar-a-Lago. “Under my watch, that is precisely what the Justice Department is doing.”
It’s a high-minded goal that Garland has emphasized repeatedly as his department’s work has put it on a collision courses with the former president. Just a few weeks prior, Garland had said, “No person is above the law” — this time in the context of a separate matter involving Trump: his efforts to overturn the 2020 election.
The reality of scrutinizing the former president, of course, is much more complicated.
And that’s reinforced, in spades, by an authoritative new Washington Post look at the buildup to the Mar-a-Lago search.
The exclusive new report from The Post’s Carol D. Leonnig, Devlin Barrett, Perry Stein and Aaron C. Davis lays out the disagreements that preceded the search, with the FBI often urging a more cautious approach than Justice Department prosecutors.
Disagreements, as they note, are inherent to such high-stakes processes, and those concerns didn’t ultimately carry the day — in keeping with Garland’s assurances. But Trump’s long-standing efforts to instill fear in and make life hell for those who run afoul of him obviously loomed as a factor in the decision-making, at multiple junctures.
Let’s walk through what they reveal:
Lead prosecutor Jay Bratt was advocating an unannounced search by early May, when preliminary interviews with witnesses indicated there were many more boxes of presidential records at Mar-a-Lago that might contain classified materials.But some FBI agents viewed that as premature and overly combative, given the situation involved a former president. Ultimately, it was agreed that they would subpoena Trump.After Trump’s lawyers turned over additional documents marked classified in early June, some FBI field agents wanted to close the criminal investigation altogether — on the (it turns out false) assumption that Trump had turned over everything.In late June, the government subpoenaed surveillance footage and discovered someone had moved boxes from where the documents had been stored, not long after the subpoena was issued. This raised the prospect of more classified-marked documents to be found.By mid-July, prosecutors were again pushing for a search. But FBI agents were still reluctant. Per The Post’s report, prosecutors “heard from top FBI officials that some agents were simply afraid: They worried taking aggressive steps investigating Trump could blemish or even end their careers, according to some people with knowledge of the discussions.”One official labeled it “the hangover of Crossfire Hurricane,” the original name for the investigation into potential connections between Trump and Russia, which an inspector general’s report later found was substantiated but contained a series of errors along the way.“FBI agents’ caution also was rooted in the fact that mistakes in prior probes of Hillary Clinton and Trump had proved damaging to the FBI,” The Post’s report says.About a week before the Aug. 8 search, the head of the FBI’s Washington Field Office, Steven M. D’Antuono, argued strongly against a surprise search. (Others worried that coordinating the search with Trump’s team might allow evidence to be hidden or destroyed.) He “complained how bad it would look for agents with ‘FBI’ emblazoned on their jackets to invade a former president’s home.” Ultimately, it was decided that agents would wear white polo shirts and khakis instead of the traditional blue “FBI” jackets.D’Antuono and FBI agents worried about Bratt having demurred when asked whether Trump was a target of the investigation. “They feared any of these features might not stand up to scrutiny if an inspector general or congressional committee chose to retrace the investigators’ steps, according to the people,” The Post’s report says.Even shortly before the Aug. 8 search, some FBI agents wanted to call Trump lawyer Evan Corcoran when they arrived for the search, allowing him to fly down and join it. FBI headquarters also asked for a one-day delay to avoid a conflict with an FBI announcement.
Ultimately, the surprise search was conducted on the planned date, without waiting for Corcoran. But in addition to the apparent sartorial concession to concerns about the optics of the search, The Post’s report states that some inside the investigation said the disagreements delayed the search “by months.” That could reduce the amount of time prosecutors have to decide on whether to file charges.
The reporting provides one of the most fulsome pictures to date of how Trump’s attacks on his foes loom over such officials. Yes, part of this was fear of missteps like those that took place in the Clinton and earlier Trump investigations. And it wasn’t all necessarily Trump-specific — as opposed to concern about searching a former president, period. But at other points it was, and it’s all part-and-parcel to the question of how Trump would respond to any missteps — whether real, perceived or conjured by the former president.
Perhaps nobody in modern American politics has wielded fear as a political weapon as successfully as Trump has. That’s especially the case when it comes to keeping his party in line — as Sen. Lindsey O. Graham (R-S.C.) has rather forthrightly acknowledged — but that’s just where the evidence is the most readily apparent.
It’s not just Trump firing former FBI director James B. Comey over “this Russia thing,” pressuring his attorney general to fire deputy director Andrew McCabe, and making then-Attorney General Jeff Sessions’s life hell. It’s also Trump’s routine attacks on those who vote to impeach him (few of whom have survived politically) and those leading investigations into him (Robert S. Mueller III, Letitia James, Fani Willis, Jack Smith, etc.). It’s Trump and his allies putting the fear of God into Fox News in a way that led it to credulously air his team’s false stolen-election claims, as detail recently in court filings. It’s lawmakers and elections officials apparently fearing for their safety and often heading for the exits because of it. It’s Trump continuing to promote violent rhetoric, despite how his supporters interpreted such statements ahead of Jan. 6, 2021.
(One of Trump’s other frequent targets, former FBI agent Peter Strzok, responded to The Post’s story Wednesday by saying, “In 20 years of working cases involving classified information, I never — not once — encountered prosecutors who wanted to get a search warrant and reluctant … agents. The other way around, sure.”)
And sure enough, shortly after the search on Aug. 8, Trump’s GOP allies in Congress assailed the search as a political attack — despite everyone involved knowing next to nothing about what undergirded it at that point. Trump and some allies quickly lodged baseless conspiracy theories about planted documents and the like. Trump has since aired nonsensical comparisons between his handling of presidential records while out of office and previous presidents, in the name of claiming victimhood and political targeting.
It’s only human to consider the blowback that might come with scrutinizing him, of all high-profile figures in recent American history. And those considerations needn’t be an extended or even conscious calculation. But we’ve seen over and over how effective fear can be for Trump.
And we should remember that as various entities confront potential criminal charges against him.
