Last Monday, the Biden Justice Department crossed a red line by ordering an unprecedented, unnecessary, and unlawful FBI raid of Trump's home and offices in Mar-a-Lago. The purported purpose of the highly controversial home raid with a brigade of 30 FBI agents—a raid Attorney General Merrick Garland admitted he personally ordered after his aides initially denied it—is related to 15 to 25 boxes of presidential records, some of which bureaucrats at the National Archives claim are classified and which Trump took to Mar-a-Lago when he left the White House over 18 months ago.
All presidents take mementos and other records when they leave office. They don't pack their own boxes. The National Archives takes the position that almost everything is a "presidential record." And the federal government, in general, over-classifies almost everything.
Thus, if Trump left the White House with classified records, then those records are necessarily declassified by his very actions. He doesn't need to label that decision for, or report that decision to, any bureaucrat who works for him. It is pretextual legal nonsense for the Biden Justice Department to pretend Trump broke any criminal statute. Indeed, it is noteworthy that Attorney General Garland apparently did not seek an opinion from the Justice Department's Office of Legal Counsel (OLC)—the de facto general counsel for the executive branch—before ordering this home raid of his boss's chief political enemy. Perhaps Garland knew OLC wouldn't give him the answer he wanted.
In 2012, former President Barack Obama secretly told the Russian president he'd have "more flexibility" to negotiate with Russia after the 2012 presidential election. To convey that message is to clearly transmit highly classified information. So why not an Espionage Act violation? Well, because Obama was the president—period.
At best, then, this amounts to a dispute over the Presidential Records Act. If the boxes sought by DOJ contain presidential records, then the National Archives "owns" them—but they'll almost certainly stay with Trump in his eventual presidential library.
It is routine for any Office of the Former President to negotiate with the National Archives. The Archives could have also alerted Congress. The Biden Justice Department could have filed a civil lawsuit. Or the Biden Justice Department could have sought more subpoenas. Instead, DOJ went nuclear, with its unprecedented, unnecessary, and unlawful home raid—even knowing Trump had already been holding these records at Mar-a-Lago for 18 months. So why now?
To put this in perspective, former President Bill Clinton stole more than $190,000 in china, flatware, rugs, sofas, and other personal gifts from the White House. The Clintons eventually caved to public pressure and paid $86,000 for the items. There was no FBI raid.
Then-Secretary of State Hillary Clinton set up an illegal home server containing some of our nation's most classified records. She openly admitted to stealing and destroying records herself, putting our national security at risk. There was no FBI raid. In fact, the FBI never even questioned her.
FBI Director Christopher Wray recently testified that the FBI was too busy to stop dangerous and illegal intimidation campaigns outside Supreme Court justices' homes. This was after an attempted assassin was thankfully arrested outside Justice Brett Kavanaugh's home. The FBI apparently didn't have the time to investigate actual threats to the lives of constitutional officers, but it had plenty of time to raid the home of a former president over an 18-month-old records dispute—with which Trump publicly stated he was fully cooperating.
House Republicans must impeach Attorney General Garland and FBI Director Wray for their unprecedented and destructive politicization of the Justice Department, when they reclaim power in January. And over the long term, House and Senate Republicans must dismantle and rebuild the FBI, so political raids like this never happen again. We cannot allow our law enforcement agencies to become third-world political hit squads.
Mike Davis, the former chief counsel for nominations to then-Senate Judiciary Chairman Chuck Grassley, is the founder and president of the Article III Project (A3P). A3P defends constitutionalist judges and the rule of law.