Conservatives Believe Trump Is Above the Law

A former president’s home was raided by federal law enforcement yesterday, reportedly over possession of classified documents. Although prosecution of former heads of state has occurred in other democracies, a form of government in which ostensibly no one is above the law, it has never happened in America, a place that did not even punish the leaders of a rebellion in defense of human bondage.

The merits of a potential government case against Donald Trump, and of the basis for the FBI’s raid on Mar-a-Lago, cannot yet be evaluated, despite the assertions of many of Trump’s supporters and critics. A federal search warrant can be obtained only with probable cause and with the approval of a federal magistrate, but that does not mean that Trump is guilty of whatever alleged crime the FBI is investigating. Nor does the fact that Trump may be guilty of criminal conduct in other contexts mean that he is guilty here. But at the same time, the reflexive Republican insistence that the investigation is politically motivated is itself unmoored from the available evidence.

[David A. Graham: The Mar-a-Lago raid proves the U.S. isn’t a banana republic]

On Fox News, pundits warned of a “preemptive coup,” proclaimed a “dark day for the republic,” and compared the FBI to “the gestapo.” Other conservative-media figures grimly suggested that political violence was imminent, while a few right-wing intellectuals tweeted menacingly in the same tone that a mid-level functionary on the Death Star uses right before he gets choked out by Darth Vader. House Minority Leader Kevin McCarthy announced that the FBI was in a “an intolerable state of weaponized politicization” and threatened to investigate if Republicans take back Congress in the midterms.

Again, the case against Trump here is impossible to evaluate, because we know the basis neither for the warrant nor the investigation. So the certainty that Trump is being politically persecuted cannot be supported by evidence. It is instead based on ideology: There are people against whom law-enforcement action or abuse is always justified, and there are people against whom it can never be justified. That is, if law-enforcement officials want to murder an unarmed Black man in the street, brutalize protesters against police misconduct, or investigate a Democratic presidential candidate, conservatives will insist that such officers are infallible and that any criticism of their conduct is outrageous. But when the law is used to investigate or restrict the conduct of people deemed by conservatives to be above its prohibitions, that is axiomatically an abuse of power.

This is why, for example, it was perfectly permissible for Trump to order his attorney general to prosecute his political opponents, to even campaign on that basis, but it is intolerable politicization for him to be investigated, regardless of the basis. Indeed, there is no need to know what the basis even is; it is by definition unjustified because of whom it targets. This reasoning is also why the police who defended the Capitol against the rioters on January 6 were assaulted by people who in any other context would chant “Blue lives matter.” Law enforcement is legitimate and deserving of unconditional support only as long as it enforces the law against groups conservatives want it to target and exempts those they do not. Shortly after news of the raid broke, far-right representatives such as Lauren Boebert, Marjorie Taylor Greene, and Paul Gosar called for the FBI to be defunded or destroyed.

[David Frum: Stuck with Trump]

Ironically, Trump has continually received favorable treatment from the FBI. During the 2016 election, FBI Director James Comey twice aided Trump’s campaign by commenting publicly on an FBI investigation into his Democratic rival, Hillary Clinton, while the bureau subsequently denied to the press that the Trump campaign was being investigated for coordinating with a Russian effort to influence the election. Then, after Comey refused to reassure Trump that the president would be above the law, Trump fired him and handpicked his replacement, who is still in office today. In 2016, Trump supporters chanted “Lock her up” in reference to Clinton’s mishandling of classified emails; today the alleged mishandling of classified information is deemed by these same supporters to be a form of political persecution. This is not because one set of facts is more damning than another; it is because conservatives believe that the law does not apply to Trump. (The centrist version of this argument is that any politician with sufficient political support becomes an unaccountable caudillo who possesses legal immunity, a position that mocks the bedrock democratic principle of political equality.)

I hope that the Department of Justice and the FBI, by virtue of the seriousness of this matter, have acted as carefully as possible in obtaining their search warrant. The gravity of the situation might suggest that they would have done so, but it doesn’t mean they did. Just as it cannot yet be said that Trump is a victim of political persecution, we do not yet know that the FBI’s actions here are justified. In keeping with conservative ideology about the infallibility of law-enforcement officials when they are not investigating Republicans, conservative judges and justices have consistently narrowed constitutional due-process protections that exist to prevent potential abuses. Indeed, Trump himself publicly encouraged cops to physically assault those in their custody, while his administration abandoned any pretense of federal oversight of police misconduct. Ultimately, conservatives believe this unfairness in the justice system to be a virtue, as long as they are never on its losing end.

The Trump supporters outraged about the Mar-a-Lago raid are not lamenting that those protections have been curtailed. They simply believe that Trump should not be subject to the law at all. Political systems with such exemptions exist, but democracy is not one of them.