Justice Department should have subpoenaed documents, not raided Trump’s home

The decision by the Justice Department to conduct a full-scale morning raid on former President Trump’s Mar-a-Lago home does not seem justified, based on what we know as of now. If it is true that the basis of the raid was the former president’s alleged removal of classified material from the White House, that would constitute a double standard of justice. 

There were no raids, for example, on the homes of Hillary Clinton or former Clinton administration national security adviser Sandy Berger for comparable allegations of mishandling official records in the recent past. Previous violations of the Presidential Records Act typically have been punished by administrative fines, not criminal prosecution. Perhaps there are legitimate reasons for applying a different standard to Trump’s conduct, but those are not readily obvious at this stage.

The more appropriate action would have been for a grand jury to issue a subpoena for any boxes of material that were seized and for Trump’s private safe that was opened. That would have given Trump’s lawyers the opportunity to challenge the subpoena on various grounds — that some of the material was not classified; that previous classified material was declassified by Trump; that other documents may be covered by various privileges, such as executive or lawyer-client. 

Instead, the FBI apparently seized everything in view and will sort the documents and other material without a court deciding which ones are appropriately subject to Justice Department seizure. 

Searches and seizures should only be used when subpoenas are inappropriate because of the risk of evidence destruction. It is important to note that Trump himself was 1,000 miles away when the FBI’s search and seizure occurred. It would have been impossible, therefore, for him to destroy subpoenaed evidence, especially if the subpoena demanded immediate production. If he or anyone else destroyed evidence that was subject to a subpoena, that would be a far more serious crime than what the search warrant seems to have alleged. It is unlikely that there is a basis for believing that the search warrant was sought because of a legitimate fear that subpoenaed evidence would be destroyed.

Defenders of the raid argue that the search warrant was issued by a judge. Yet every criminal defense lawyer knows that search warrants are issued routinely and less critically than candy is distributed on Halloween; judges rarely exercise real discretion or real supervision. It may be different when a president’s home is the object of the search, but only time will tell whether that was the case here.

Neutral, objective justice must not only be done: it must be seen to be done. 

For zealous Trump haters, anything done to Trump is justified. For zealous Trump lovers, nothing done to him is ever justified. For the majority of moderate, thoughtful Americans, however, the Justice Department’s raid likely seems — at least at this point in time — to be unjust or needlessly confrontational. 

Thus, it is now up to the Justice Department and the FBI to justify their actions to the American public. They must explain why a different standard appears to have been applied to Democrats such as Clinton and Berger than to Republicans such as Trump and many of his associates. 

Critics of this demand for a single standard of justice insultingly call it “whataboutism.” A more appropriate term would be “the shoe on the other foot test.” No government act should ever be accepted unless it would be equally applied if the shoe were on the other foot — in other words, if it were applied equally to political friends and foes. This is the essence of our constitutional requirement of the equal protection of the law. 

For now, let’s not rush to judgment. Let’s give the attorney general, Merrick Garland, and the director of the FBI, Christopher Wray, the opportunity to explain their actions. If they decline to do so, on the basis of confidentiality, a special master should be appointed by the relevant court to assess the evidence seized from Trump’s home on a confidential basis. In the alternative, a true congressional committee comprised of both Democrats and Republicans should be appointed to investigate this raid. 

It is true that a president or former president is not above the law — but neither should he or she be below the law. Precedents established in relation to Democrats must be equally applied to Republicans. On the face of it, this standard has not been met here. 

The burden of proof is now on the Justice Department and the FBI to justify what appears to be unequal justice. 

Alan Dershowitz, professor emeritus for Harvard Law School, served on the legal team representing President Trump in his first Senate impeachment trial in 2020. Dershowitz is the author of numerous books, including “The Case Against the New Censorship,” and “The Case for Color-Blind Equality in an Age of Identity Politics.” He is also the host of The Dershow on Rumble. Follow him on Twitter @AlanDersh.