It’s remarkable that it didn’t leak. A story of this magnitude – the FBI raiding the compound of a former president, executing a search warrant in connection with a criminal investigation – is the kind of story that every well-connected reporter in Washington would usually have heard about. But the major papers seemed surprised on Monday night, scrambling to catch up as the story unfolded. In the end, the person who broke the news was Donald Trump himself, posting on his own somewhat anaemic Maga blogging platform, Truth Social. “After working and cooperating with the relevant government agencies, this unannounced raid on my home was not necessary or appropriate,” Trump said. “They even broke into my safe.”
If the Justice Department and the FBI were able to keep news of the raid from leaking, it implies that they are treating their investigation into Trump with extreme caution. A raid on such a high-profile and polarizing political figure would have been approved and monitored by officials at the very top; at the very least, the agencies would have had to get a warrant from a federal judge. The raid is a significant escalation of the department’s relationship with Trump. It’s now difficult to think, as many of us long did, that the DOJ is unwilling to make Trump himself the object of a serious criminal inquiry.
Why now? Supposedly, the raid was carried out pursuant to Trump’s improper handling of classified documents. The former president has long been dogged by accusations that 15 boxes of secret material came with him from the White House to Mar-a-Lago after he was finally forced to leave office in January 2021, a move that would violate federal codes governing the destruction or removal of such materials.
If that is indeed what the feds are looking into, then the raid on Trump’s Florida resort will be less about the content of whatever documents they may find than the mere physical presence of classified material in a place it is not supposed to be. In that case, it won’t be that the agents uncover a secret journal of Trump’s crimes, or hidden evidence of previously untold corruption. It will be that the presence of documents themselves, housed away in Trump’s safe or somewhere else within the gaudy halls of his home, is evidence of wrongdoing.
But the laws governing the handling of documents are toothless and rarely enforced, and the notion that Trump is being criminally investigated for the wrongful handling of classified material – and not, say, the months-long attempt to overturn an election, culminating in a violent putsch – has the deflating quality of the absurd. The DOJ investigating Trump for his 15 boxes of documents is a bit like when the FBI was finally able to prosecute the mobster Al Capone – for tax evasion.
But some accountability is better than none, and it could be that the agencies are pursuing the easiest possible case against Trump in an effort to leverage their way to more information. They have reason to try. The raid comes after a season of blockbuster January 6 committee hearings, which have revealed substantial new information about the extent of Trump’s foreknowledge of the insurrection and his approval of it.
The hearings painted Trump as contemptuous of voters, scheming to scam and manipulate those who voted for him. The televised proceedings depicted a Trump who was deeply aware of the illegitimacy of his election fraud claims, eager to risk the safety of others by not calling off the attack, and petulant and childlike, to the point of throwing a plate laden with ketchup at the White House walls. The notion that the DOJ’s changing posture toward Trump has nothing to do with these hearings strains credulity.
If the hearings changed the department’s calculus, that’s all for the better. The DOJ is a risk-averse body by nature, and the attorney general, Merrick Garland, has been especially timid and squeamish even by the standards of his office. He didn’t want to pursue what could look like a politically motivated prosecution of a political opponent; he didn’t want to annoy the sizeable minority of the US that sees Trump as a beloved, almost messianic figure. It long looked as if the department would not have the stomach for a real investigation of Trump – that they would allow his crimes to go unanswered for fear of appearing too political. But the hearings surfaced new evidence, and brought new pressure to bear on the department – that of an outraged populace.
Even though a chunk of the country adores Trump, most Americans think he’s a corrupt crook. Nearly 60% said he should be prosecuted for the events of 6 January, according to a recent poll. Reports from the Justice Department’s own inquiry indicate that the investigation recently turned to Trump’s own role in the scheme to overturn the election by sending fake electors to Congress. It’s possible that, to Garland, the worry about what it would look like if he tried to hold Trump accountable has finally been eclipsed by the worry about what it would look like if he didn’t.
It may also be that the risk of political pushback against the DOJ from an empowered Republican party increasingly seems like something that it’s not worth being afraid of. In the hours after the raid, Trump and his Republican allies made it clear that they thought they could gain a political advantage by casting themselves as the victims of an aggressive federal bureaucracy that was overstepping its authority. On Fox News, the rightwing media personality Dan Bongino called the raid “third world bullshit”.
Laura Ingraham alluded to a changed balance of power in Washington after the midterms, tweeting: “Dems and press poodles celebrating tonight. But soon you’ll lose the gavel. And then what?” The threat was made explicit by the House Republican leader, Kevin McCarthy, who issued a statement. “The Department of Justice has reached an intolerable state of weaponized politicization,” he wrote. “When Republicans take back the House, we will conduct immediate oversight of this department, and leave no stone unturned.” The message was clear: if Republicans are allowed back into power, they will retaliate against the DOJ for having tried to hold Trump accountable.
But this, too, may have changed the DOJ’s calculus: the reality that in its current state, the Republican party will retaliate whether the law enforcement agencies investigate Trump or not. In this context, Garland’s changed posture towards Trump begins to make sense, even if the more cynical among us may still be surprised by his evidently renewed courage. If Garland is going to be punished for upholding the law and for not upholding the law, then the consequences for action and inaction become different to tell apart. He may as well do his job.
Moira Donegan is a Guardian US columnist