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Does The GOP Now Consider Ex-Presidents To Be Above The Law?

Many Republican office holders have been frothing at the mouth as they air claims that an FBI-initiated search of Donald Trump’s Mar-A-Lago resort and residence was “unprecedented,” “intolerable,” “un-American,” and a step toward “communism.” This raises the question – when did the GOP adopt as part of its governing philosophy the principle that a former president’s residence, including one which doubles as a ritzy resort, cannot be the subject of a lawfully executed search warrant?

Sitting U.S. presidents enjoy a significant degree of insulation from civil and criminal proceedings to which virtually all other citizens are subject, and this is appropriate. Were the holder of such high office subject to civil lawsuits and resulting discovery proceedings by every possible aggrieved party, or vulnerable to prosecutors seeking to make a name for themselves by indicting him, it would become utterly impossible for a president to carry out his constitutional duties.

This is why the only way to remove a president is via impeachment and conviction by the Congress. It also stands as the reason for maintaining a very high bar for litigants to overcome in order to force a sitting president to respond to civil judicial proceedings. A former president, however, while perhaps allowed an elevated degree of deference in such matters, has never been considered absolutely immune.

Claiming that the August 8th execution of the search warrant is an “un-American” step on the road to “communism” because it is “unprecedented” – that is, it happens to be the first time a search warrant has been executed on an ex-president’s residence – makes no sense, but has become a repetitive GOP talking point in the aftermath of the FBI’s actions.

Such over-the-top claims obscure legitimate questions the FBI and the Department of Justice need to answer in due course, and with more than the platitudes about “the rule of law” that Attorney General Merrick Garland publicly declared last Thursday.

Some of these questions will be answered upon the release of the affidavit(s) on which the federal judge who signed off on the search warrant based his decision. The Justice Department would be well-advised to expedite their release to the greatest extent possible, consistent with sound investigative proceedings, such as pursuing possible further leads and discovering potential additional evidence.

To be fair, in the current context, Republicans are raising legitimate questions about the manner by which the FBI and the Justice Department are proceeding so vigorously against other Trump supporters such as Peter Navarro, and why officials at those agencies are not pursuing at all substantial evidence of gross misconduct by President Biden’s son Hunter.

But while such queries properly are raised in the context of a “double standard” of justice, they are irrelevant to the important questions underpinning the Mar-A-Lago search – has the former president violated federal laws since leaving office, were those violations of a serious nature, and was the timing of the search crucial?

Notwithstanding that die-hard Trump supporters likely will never accept the legitimacy of the search warrant or the subsequent seizure of classified documents, federal law enforcement must provide answers to such questions if it is to restore its already damaged credibility.

Calls to “defund” the FBI are irresponsible. Calls to conduct serious but professional oversight of the Bureau, including possibly restructuring some parts of the massive federal investigative agency, are not irresponsible. In fact, such oversight – especially if conducted at least in a somewhat bipartisan manner – would reflect precisely the sort of oversight responsibility that Congress should undertake, but which it rarely pursues regardless of which political party controls the majority.


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