Let me start by stating the obvious.
The execution of a federal search warrant at the residence of a former U.S. president is more than an extraordinary occurrence.
Fact is, things like that just don’t happen.
Pick a presidential scandal in our history —Teapot Dome, Watergate, Iran-Contra or Whitewater. It just doesn’t happen. Not until Monday, anyway, when a host of FBI special agents, lawful warrant in hand, rewrote the history books forever.
Now, let me tell you why the FBI search of the former president’s Mar-a-Lago residence in Florida on Monday is such a big deal.
The former president of the United States is suspected of committing a crime. As obvious as that may seem given all that has transpired over the past seven years — yes, you would be spot on for thinking “duh” — the fact of the matter is that, as a nation of laws, we’ve never had a president who has been so antipathetic towards them.
Still, while no one, not even a former president, is above the law, the presumption of innocence is an important tenet of American jurisprudence. We, all of us, even corrupt former presidents, are afforded the rights set forth in the U.S. Constitution when it comes to things like searches and seizures, protections against self-incrimination, and the right to trial by jury.
Two centuries of justice under a constitutionally established rule of law ensures that.
Which is why the criticisms coming from the supporters rushing to the former president’s defense in the wake of the search make no sense. Those supporters, many of whom are lawyers, know what due process and the rules of evidence are. They claim to be well-versed in the Bill of Rights. What’s more, their phony outrage directly undermines that long tradition of American jurisprudence.
The FBI executes search warrants all the time. Contrary to the fearmongers and conspiracy theorists amongst us, they are not political acts. Not even when directed against a politician. The reason for their use is simple and straightforward — to find evidence of a crime.
The process to obtain a warrant is also straightforward (though not always simple). Investigators and prosecutors working together set forth facts obtained during an investigation to establish a “reason to believe” (also known as probable cause, or PC) that a crime was committed. In the case of a bank robbery, for instance, those facts might include a detailed description of the robber, a license plate of the getaway car, fingerprints, the amount of money stolen, and other information of an evidentiary nature from witnesses, confidential human sources or technical means. Those facts are then presented to a magistrate who reviews them and decides whether or not to authorize the warrant. If a warrant is authorized, investigators proceed to the location to be searched and execute it.
In the matter of the search executed on the former president’s residence, all these steps were surely followed. And then some. I speak from experience that a search like this, especially in the current political environment, would have been scrutinized at all levels of the FBI and DOJ before it even went to the magistrate. From a practical perspective, standard PC determinations — like those in a bank robbery — would not have been sufficient. Like it or not, the former president’s status as a former president would not have allowed it.
Instead, given his privileged status (not to mention the aforementioned political environment), the information supporting the PC in the warrant executed at Mar-a-Lago would have had to go way beyond the norm. It wouldn’t be enough, for example, for a source to say, “I believe the smoking gun is in the safe.”
He, she or it would almost certainly have had to provide a specific and timely first-hand witness that they knew it was in the safe. A high-definition picture of the smoking gun would have helped, too.
Put another way, the evidence supporting the PC would have to be good enough to get a warrant and be trial worthy, which is to say, beyond a reasonable doubt (a much higher standard than “reason to believe”).
Yes, that kind of thing drives investigators nuts, but there it is.
What’s more, the basis for a warrant such as this one would had to have been approved all the way up to the U.S. attorney general himself before it went to the magistrate.
It’s a rigorous process, and rightly so. To diminish it as the former president’s supporters have attempted to do (by calling it a “Third World” act) is a reprehensible offense not only to the rule of law, but to the Constitution itself. That’s a Constitution that they loudly pretend to support and defend until it won’t do their bidding.
But I digress. Much more important than the mendacity coming from the former president’s supporters is what happens next in the investigative process.
Despite all the hoops investigators have had to jump through to get it authorized, and in spite of the fact that the target was a former president, Monday’s activity at Mar-a-Lago was still just the execution of a search warrant. An investigative step. While the former president’s own attorney has already indicated “paper” was seized — which means investigators got something — it must be reviewed and determined if it can support further investigation. And even if it is something of significant value (for instance, the elusive “smoking gun”), there will still be much more work to do before criminal charges can be brought.
That said, I can’t help but think about what happened to Paul Manafort (the former president’s campaign manager) and Michael Cohen (his former personal attorney) after their residences were searched. The PC standards for them were very high, too, and yet look at what they yielded.
Indictments. Arrests. Convictions.
True, the former president is not them. He has proven himself adept at dancing between the raindrops without getting his hair wet when it comes to questionable actions in and out of office. He beat two impeachments and a wide-ranging investigation involving Russian interference in our national elections. He has, thus far, also avoided consequences for allegedly fomenting an insurrection and perpetuating baseless lies about an election he lost, by a lot. And while we continue to struggle with a pandemic that won’t go away and supply chain problems that affect everything from electronic devices to automobiles to baby formula, nobody in his sphere mentions the disastrous trade war with China that exacerbated all of it.
But the FBI and its DOJ partners know what they’re up against. They know what’s at stake. And they know what they must do to serve justice. The well-executed search warrant at Mar-a-Lago was just the beginning. Now it’s about bringing charges and proving them. It’s never an easy task, especially with a subject as wily (and lucky) as the former president, but this time I can’t help but feel like they are finally onto something that will stick.
What’s more, despite all the accusations the minority leader of the House of Representatives leveled at DOJ and the FBI in the aftermath of the search, the simple truth is that it was a direct result not of “weaponized” law enforcement out to “persecute” a politician, but the crass incompetence and blatant disregard for American values that have marred the former president’s cult of personality since its inception.
The cult, it seems, is finally collapsing under its own gross obesity. As it does, we may be getting to the point that the myth the former president could shoot someone on Fifth Ave. and not lose any votes is about to be shattered.
ABOUT THE WRITER
Frank Montoya Jr. is a retired FBI senior official who served as the national counterintelligence executive, Office of the Director of National Intelligence and special agent in charge of two FBI field offices.