AMAC Exclusive – By Daniel Berman
Talleyrand once remarked of a particularly egregious act on the part of his oft-capricious master, Napoleon Bonaparte, that “it was worse than a crime. It was a mistake.” That famous quote, it seems, captures the situation Democrats now find themselves in following the raid on Donald Trump’s home at Mar-a-Lago.
Taking a step back from the justifiable outrage over the recent FBI raid on Mar-a-Lago, and from concerns over the damage it inflicted on the reputation of law enforcement and fraying respect for partisan norms, a bigger mystery emerges. What, precisely did the Biden administration – and Attorney General Merrick Garland in particular – hope the raid would accomplish if they approved it? And what possible justification exists which would justify for Democrats throwing away the argument on which they have hung their opposition to Donald Trump, both in and out of office for the last seven years, about the importance of “norms” over the strict letter of what is legal?
The answers are not pretty. We now know Attorney General Merrick Garland authorized the raid personally, ostensibly over a dispute regarding classified material. We further know that the DOJ and FBI have been in talks with the former president’s team for months, and twice, upon request, documents have been transferred to DC. Two conclusions emerge. First, that it was clearly possible to settle these disputes over the security of documents civilly and without a recourse to force. Secondly, even if negotiations had broken down temporarily over particular documents, the urgency of any raid must be called into question. Whatever documents were at the center of the dispute, whether “nuclear” or related to French President Emmanuel Macron, they had been in Mar-a-Lago for over 18 months. The onus of the FBI and the Biden administration must be to prove why their presence in Florida did not pose a threat to national security justifying this sort of unprecedented raid for 18 months, but somehow did in month 19.
Let us first consider the most generous interpretation. That Garland, like Victor Hugo’s Inspector Javert from Les Misérables, believes that there is no potential crime too petty to justify treating it like a terrorist plot. Javert was an illustration of how blind principle could produce stupidity bordering on madness. In this case, if any such individuals believed that the presence of insecure classified records at Mar-a-Lago posed a national security threat, the nature of this raid ensures that the most critical national security concerns will be impossible to accomplish. Learning what records are missing and where they are is far more important to American national security than recovering a portion of them. If the FBI knows what is missing, it can take steps to remedy any vulnerabilities. Yet by raiding the home of the former president, the FBI has ensured a lack of further cooperation both by Donald Trump, who even if he wished to cooperate will not be permitted to do so by his lawyers, and by local law enforcement. Even if FBI officials were entirely disinterested in the partisan dynamics of the issue, and merely concerned with the letter of the law and national security, they have left themselves and the country worse off.
If the FBI can get off with pigheadedness, even if malice seems plausible, the Biden administration cannot get off so easily. After all, they, along with congressional Democrats and the media, have spent years lecturing everyone about the vital importance of “norms.”
The premise of Democratic discourse about “norms” is that there are informal rules on which the American system is founded. They may not be strictly legal or constitutional, but they serve a strong regulatory function. While it has become clear that many of these norms have been distorted or hijacked through institutional capture to advance a “woke” or partisan agenda, there is truth that norms have played an important role in human society. The heart of any conception of norms is that there are things you could legally do, but you do not because the consequences of doing so would be undesirable.
The irony of the raid is that it is perhaps the best example of the clash between norms and laws. It might very well be the case that some classified documents were unaccounted for, that the FBI had reason to believe they might be at Mar-a-Lago, and that “technically” this was a justification for a search warrant. It was also the case that Donald Trump was a former president, Joe Biden was his opponent in a bitterly contested election, and there remains a strong prospect of a rematch. Such a raid would involve armed law enforcement ultimately answerable to Joe Biden being used to raid the home of his possible opponent in the next election. Even if the raid was legal, and the documents real, that would have to be weighed against the perception the action was partisan, the destruction of faith in the institution of the FBI, and the tradition of not persecuting political opponents within the American system.
Just as Democrats argued Donald Trump should have foregone legal challenges he was entitled to undertake after the election, the exact same argument would have applied even more strongly to forgoing this raid given the likely damage to vital institutions. Instead, the Biden administration decided that when it comes to norms, only Donald Trump is obligated to follow them. Their hands are tied when some partisan lawyer presents them with a brief telling them what they want to hear.
It is stunning that this is the argument they have gone with. In the realm of public opinion, the raid took place on an issue that even to partisans looks petty. Even for the MSNBC-watching wine moms of America, the purported audience of the January 6 hearings, misplacing classified material sounds like jay-walking when contrasted with charges of coups, foreign plots, and other intrigues. The justification for the raid is one that even those who would claim the former president attempted some sort of “coup” cannot pretend to believe is important.
The effect then is to destroy the relative importance of the reasons why Democratic partisans hate the former president. By suggesting that an unprecedented raid on a man who may well be a candidate for president again in 2024 is justified on whatever basis is available because “he is a threat to the Constitution” is to confirm all of the charges that they are out to get Donald Trump, specific reasons to be determined later.
The “norms” argument has always been conveniently one-sided when it came from Democrats. It applied to Donald Trump when it came to personnel appointments, personal access to Twitter, and the 2020 election, but did not apply to Democrats or their supporters when it came to the Supreme Court. But if the argument suffered from hypocrisy already, its reduction to a technicality has finally killed it. By ordering the raid, the Biden administration has asserted that alleged mishandling of various documents is more important than the reputation of the nation’s top law enforcement agencies or the integrity of the Constitutional system in the eyes of tens of millions. And if, as is plausible, they saw political advantage in the raid, then they are willing to trade their own short-term political advantage for that same discrediting of institutions. In either case, it appears to have been worse than a crime. In destroying their own rationale for opposition to Donald Trump, Democrats may have made a mistake of historic proportions.
Daniel Berman is a frequent commentator and lecturer on foreign policy and political affairs, both nationally and internationally. He holds a Ph.D. in International Relations from the London School of Economics. He also writes as Daniel Roman.