Legal experts explain why FBI Mar-a-Lago search was a triumph for ‘checks and balances’

22 August 2022

In right-wing media outlets — including Fox News and Fox Business — countless pundits have been slamming the FBI’s Monday, August 8 search of Mar-a-Lago as politically motivated government overreach. But many pundits at liberal-leaning MSNBC, on the other hand, have applauded the search, hoping that former President Donald Trump will face something they believe he has escaped much too often: accountability.

An op-ed published by Fox News’ website on August 22 is considerably different in its viewpoint from the ultra-MAGA commentary typically offered by far-right Fox News pundits such as Tucker Carlson, Jeanine Pirro, Laura Ingraham and Sean Hannity. The op-ed was written by three legal experts: Laurence H. Tribe, Dennis Aftergut and Jeffrey Abramson, who view the FBI search and the investigation that goes with it as an example of “checks and balances” working in U.S. democracy.

“The U.S. Constitution is grounded in skepticism about government,” Tribe, Aftergut and Abramson explain. “That’s why it creates three branches that ‘check and balance’ each other. Our revolution was a fight for independence from a king who could do no wrong. The Constitution’s underlying message was that power in a single person corrupts. In that spirit, whatever our political orientation, each of us should apply a critical mindset to all the powers at play in the FBI search of Mar-a-Lago.”

The legal experts continue, “On one side are current government officials. Safeguarding liberty calls for skepticism toward every exercise of power. That is exactly what Judge Bruce Reinhart displayed in last Thursday’s hearing on releasing the Mar-a-Lago search warrant affidavit. He did not uncritically accept the government’s position that nothing could be disclosed. Rather, he ordered it to submit a redacted copy of the affidavit so he could decide for himself what could safely be released.”

Tribe, Aftergut and Abramson point out that never before in U.S. history has a former president been the focus of the type of search warrant that was executed at Trump’s Mar-a-Lago resort in Palm Beach, Florida on August 8.

“Searching a former president’s residence, even under judicial supervision, is unprecedented,” the legal experts observe. “Even accusations of unprecedented crimes committed by a former commander-in-chief do not cancel the search’s extraordinary nature: Skepticism requires presuming everyone innocent until proven guilty. Whenever the affidavit is made public, the FBI better have had an evidence-based justification for that intrusion and have dotted every 'i’ and crossed every ‘t.’ On the other side, much already-public information supports the belief that the former president committed crimes by unlawfully keeping some of the nation's most sensitive secrets after multiple government requests for their return.”

They continue, “Asserted doubts about the legitimacy of his loss to the incumbent president are irrelevant to those alleged crimes. They were committed by taking the materials to a private residence that doubles as a resort and that at least one suspected Chinese intelligence agent had already penetrated.”

Tribe, Aftergut and Abramson emphasize that even a former president is not exempt from the rule of law in the United States.

“Thomas Jefferson said that ‘the whole art of government consists in being honest,’” they write. “But here, Donald Trump has not even kept his story straight. He has claimed he never had the boxes of top-secret documents; that he returned them all; that if they were there, FBI agents planted them inside his resort; or that if they were classified, he had declassified them, which actually doesn’t matter to the illegality of taking them to his resort because, if the material was ‘defense-related,’ holding onto it was a federal crime regardless of whether it was classified. Jefferson must be spinning in his grave.”

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