The U.S. Constitution is grounded in skepticism about government. 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.
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.
COULD THE FBI USE DOCUMENTS SEIZED AT MAR-A-LAGO RELATED TO OTHER TRUMP-LINKED PROBES?
Searching a former president’s residence, even under judicial supervision, is unprecedented. 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. 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.
Thomas Jefferson said that "the whole art of government consists in being honest." 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.
The bottom line is that citizens’ watchful oversight of government leaders, present and past, is where protection of our rights, liberties, safety and security lies. The people are the ultimate check and balance.
If one believes in limited government, then the legal process around the Mar-a-Lago search reflects a justice system working properly. The Justice Department investigated and attempted to negotiate for the return of the illegally removed documents. The DOJ initiated the search warrant only after a Trump lawyer falsely signed a statement saying that all classified materials had been returned even though the search evidently retrieved documents marked Top Secret, meaning they could cause "exceptionally grave harm" to the country, including endangering the lives of intelligence sources.
Even then, a court authorized the search only after determining that the affidavit supporting the warrant established probable cause to believe that it would retrieve evidence of crimes. And Mr. Trump, no shrinking violet when it comes to filing lawsuits, has an opportunity to back up his vague allegations that the search was unfounded – he can sue the searchers for violating his rights, as a leading Supreme Court decision long ago affirmed everyone’s right to do.
He could also belatedly join the news agencies that filed motions to have the affidavit released, or ask the federal court to appoint a special master to review the seized documents. Even without Trump intervening, the court again played its check-and-balance role on the government by signaling a readiness to release parts of the affidavit if suitable redactions necessary to protect sources and witnesses were made.
Moreover, atop this layer of review is additional oversight that we saw at work on Aug. 19 in another case: The D.C. federal court of appeals rejected the previous Justice Department’s insufficiently justified effort to hide from the public a document containing evidence of alleged wrongdoing.
The judge deciding the Mar-a-Lago matter is accountable to the same higher authority. Thus, no one need worry that the FBI, the DOJ or that judge will be able to hide, without full review, the basis for their decisions to seize boxes of material that Trump insists he had a right to keep at Mar-a-Lago.
Indeed, at stake in the Mar-a-Lago search are the most traditional and well-trod ways of enforcing the law, including the first principle of the rule of law: that anyone who violates the law, including a former president, is within its reach.
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In an eloquent 1956 essay entitled, "On Being a Conservative," Michael Oakeshott, a scholar revered on the right, wrote: "To be conservative, then, is to prefer the familiar to the unknown, ... the tried to the untried, fact to mystery … [and] the limited to the unbounded."
In this sense, all of us who opt for legal process over threats of war and violence are conservatives. The system of checks and balances at work in the Mar-a-Lago search is familiar, tried, fact-based, and limited by oversight. On this foundation lies whatever hope there is that reasonable people on both sides of the political divide may find common ground and avoid the chaos that threatens everyone’s liberty.
Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.
Jeffrey Abramson is a professor of law and government at the University of Texas, Austin.
