Last week, the F.B.I. searched the Florida home of former President Donald Trump and removed twenty-seven boxes of material that he had taken from the White House. A number of the boxes contained classified information. Trump has said that the raid was part of a political witch hunt and suggested that agents may have planted material; a number of fellow-Republicans have followed his lead, and attacked the F.B.I. But even some Trump opponents are concerned about the implications of an indictment—the possible political backlash and whether the precedent would encourage future Administrations to investigate their predecessors. The New York Times columnist David Brooks, for instance, worried that arresting Trump could lead to “a complete democratic breakdown.” In the Washington Post, George Will warned that “the punctilious enforcement of every law, no matter how complex the social context, is zombie governance by people spouting bromides to avoid making complex judgments.” These fears prompt the question of whether the Department of Justice should have a higher bar for prosecuting former Presidents than it does for other citizens.
I recently spoke by phone with Steve Vladeck, an expert on national-security law and a professor at the University of Texas School of Law, about some of the issues raised by the search, which was sanctioned specifically by Attorney General Merrick Garland—and, more broadly, about how the D.O.J. should think about investigating political figures. During our conversation, which has been edited for length and clarity, we also discussed the mind-set inside the D.O.J., the President’s power to declassify documents, and the different meanings of prosecutorial discretion.
What does it mean in practice when people say that the D.O.J. needs to be extra careful, or perhaps even have a different standard, for prosecuting a former President?
What they really mean is that the Justice Department should have a higher standard for prosecuting a former President of a different party. I don’t think we’d be having the same conversation if this were the Biden Administration looking into, for example, alleged mishandling of information by former President Obama. The concern here is that the D.O.J. is abusing its prosecutorial authority to score political points. If the D.O.J. were investigating folks who were perceived as being on the same team, I don’t think we’d be having anywhere near the same kind of conversation.
I agree with that distinction. But how would you answer the question with that in mind?
It would mean raising the level within the department at which the decision gets made. It’s not typical for the Attorney General to personally sign off on search warrants. So I think part of the care that folks are clamoring for, and that apparently was taken in this case, is to have the decision made at the highest level of the department, versus leaving the authority with a single special agent in charge of an F.B.I. field office. To me, that’s part of the higher bar here. When we really want to make sure that the government is taking something seriously, we bump up the level at which actions have to be approved.
I think that’s absolutely right, and I think almost no one would dispute that that’s a good thing. But I hear people saying two things. One is that you should be more careful with a former President of the opposite party. And the other is that prosecutors are always using discretion in deciding which cases to pursue. What no one wants to come out and ask is “Should the person being investigated matter to a prosecutor?”
In reality, it does. I don’t know that this is a good reality, but it’s a reality that can’t be denied. Prosecutors and law-enforcement officers tend to take different approaches to, for example, white-collar defendants than they do to, say, suspected gang members. That’s just a feature of the system that has both virtues and vices. With the former President, it’s almost obvious that you want to go a little more carefully. Not necessarily because of the partisan undertones—but just because of the very dramatic step of searching a former President’s house in the first place.
But what does going carefully mean? Going carefully, to me, means two things. One, it means approval at the highest level. And, two, it means perhaps an even higher level of certainty than we usually require for search warrants that the government is going to find what they’re looking for. It is not a requirement of a search warrant that the government actually find what it says it’s looking for. If the government has probable cause to obtain a warrant, conducts a search, and comes up empty, that’s not usually understood to be unlawful or a violation of anyone’s rights.
But the fear is that it would have been presented as such in this case?
Exactly. I think approval at a higher level and a higher degree of certainty that the search is going to be productive are two of the ways I would want the Justice Department to tread a bit more carefully. And by all accounts it did in this case.
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I want to go back to something you said about the virtues and vices of prosecutors. You used the example of white-collar crime versus non-white-collar crime. What are the virtues and vices of the discretion that you think they are using?
On the virtue side, part of the idea when you come to cases where the government goes a little more carefully is an effort to work with the target so that they’re not shocked by the search, so that they’re not startled. You reduce the risk of a confrontation, right? Coördinating with the target’s lawyers so that the target isn’t home at the time of the search, trying to reduce the temperature—versus the risks of the predawn, no-knock raid where the law-enforcement agents on the ground never know what’s on the other side of that door. I think there’s a virtue, from the government’s perspective, of coördination. Of course, the vice is that you’re treating similarly situated people differently, and often in ways that align with their socioeconomic status or racial status.
Prosecutorial discretion is often discussed along the following lines: “This person may have violated this law, literally, but we are not going to prosecute, because we don’t think it’s a big enough deal.” And that makes sense. But do you see a way of writing into law or even into D.O.J. regulations the idea that a political figure or a former President in an opposite party should be treated differently? I understand the utilitarian case for treating them differently, but can that be codified? Is it good that prosecutors approach things differently based on who the person is?
I think it can be codified into regulation. Just to take one example, the D.O.J. has an internal memorandum that is supposed to govern media contacts, right? It’s supposed to govern circumstances in which law-enforcement investigative tools are allowed to be directed against reporters as a means to try and smoke out, for example, leakers or other sources. Those guidelines aren’t always honored, but they’re there. So it seems to me that D.O.J. could attempt to write some of this down. It shouldn’t surprise us that D.O.J. didn’t already have guidelines for a case that has never happened before. Maybe one of the lessons here is that it would behoove the department to adopt formal guidelines going forward anytime a former President or Vice-President is suspected of criminal activity. They can’t be blamed for not having that already on the books, I think.
One of the regulations put in place by former Attorney General William Barr was that he—and future Attorneys General—would take more care to look at politically sensitive investigations. But that seemed to be more about what you were saying earlier—making sure the investigation is on the up-and-up—rather than treating people differently.
I think that’s right. For better or for worse—and I would say for worse—it has long been a feature of our criminal-justice system that similarly situated people are treated differently. Once we accept that, the question is whether we should just rail against it till the cows come home or whether we should try to create rules that account for the different categories. Should we accept that, as a practical matter, D.O.J. is going to look at two search warrants for the same criminal offenses very differently, depending on who the target is? Or should we actually encourage D.O.J. to memorialize what those differences are and why they matter? I don’t think it’s obvious which is the right answer.
For your search-warrant example, you could say that agents evaluate some security risk and then decide about kicking a door down—which is not the same as saying, “I have different feelings about what it would mean to prosecute two different people based on how the media or the public might act or vote.”
We do have one example: the special-counsel regulation. It identifies criteria in which the investigation or prosecution would present a conflict of interest for the department, or other extraordinary circumstances. It seems like you could have a similar approach to special search-warrant procedures. The wording is tricky, but it would be for cases in which there’s likely to be sustained public attention and concern that the investigation is for political purposes.
Among people who worry about norms and institutions, why is there so much concern about investigating a former President and what that would mean, and not so much about a President breaking laws and getting away with it? Both of those things are really important—not to have a country where you just prosecute the party out of power, and not to have a country where Presidents break the law. But it does seem like everyone in this D.O.J. world—
Is coming at it from one way. I think it’s because, for better or worse, everyone views this particular case as being litigated in the court of public opinion.
If the legal process is not capable of drawing a distinction between legitimate and illegitimate exercises of government authority, we ought to be talking about how to fix that process.
For example, if the government obtains a search warrant under false pretenses, there’s a legal process for collaterally attacking the warrant. In a criminal case, it’s called a Franks hearing, but most criminal-defense lawyers would tell you that Franks hearings have been watered down and don’t actually serve their purpose. If government officers search our homes unlawfully and never use the evidence, never even try to prosecute us, we’re supposed to have a remedy for that under a 1971 Supreme Court case called Bivens. The Supreme Court has spent most of the last two decades eviscerating that remedy.
We have a choice as a society between making political judgments about the legitimacy of law-enforcement operations or creating a legal process that can suss those out. Part of what we’re seeing is a reality in which the legal process is both perceived to be—and probably is, in fact—woefully insufficient to distinguish between good government behavior and bad government behavior.
That makes sense, but how do you think it explains my question?
It ought to be easier for folks on all sides to say, “Let’s see how this plays out in court.” Right? If someone crossed the line, let the legal process hold them accountable. If President Trump thinks the search is illegitimate, let him challenge the warrant. That ought to be the conversation we have. I think part of the problem is that, because of the weakness of the legal processes, folks will have to say, “I’m going to decide for myself whether this was or was not legitimate based upon my personal assessment of my view of the facts.” And, if that’s the approach, we’re never going to have consensus.
But do you think there is bias among a certain type of institutionalist, where he or she is much more concerned with the D.O.J. being seen as political than with going after what they perceive to be law-breaking from a chief executive?
Yes. I think that’s surely part of it. Also, there’s been so much focus on the institutions in the last few years. And people are wary either of the institutions themselves or of the efforts to delegitimize the institutions. It’s sort of a two-way street. We’ve become so focussed on the institutions of power that we have lost sight of the better way to regulate those institutions. We’ve lost sight of the fact that we have, or at least should have, this inter-branch process that actually helps to reign in abuses. We’re left to litigate abuses by these institutions in the court of public opinion, a court where there’s no final judgment.
I wish it were the case that, when folks said, “This is all unprecedented,” the part that they found unprecedented was the curious and judicially sustained allegations that a former President has violated multiple federal criminal statutes.
Turning to this case specifically, the President’s more fervent supporters have said that he could have declassified something whenever he wanted to, without any real process. What do you make of that argument?
It’s almost entirely a red herring, in the sense that the statutes at issue, at least in the warrant, don’t turn on whether the information was classified or not. I have some thoughts about the notion that a President can declassify a document just by looking at it. I don’t see how that could work. I think it’s a distraction.
To the larger point, I think two things are true. In general, the President has incredibly broad power to classify and declassify documents. I don’t think it’s completely plenary. We have at least one example, the Atomic Energy Act, in which Congress has claimed at least some authority over classification. But it doesn’t follow that because the President has this broad power, he can declassify by mental process. There’s this Second Circuit case from 2020 that says that even the President has to follow the procedures. There are procedures he creates, so he can change them, but, if there’s no mechanism for memorializing declassification decisions, then I don’t know how the declassification could be effective.
What do you mean by “effective”?
I mean, if I bring a foia request for the information President Trump has purportedly declassified, I’m going to lose because I’m not going to be able to prove that the information was actually declassified.
Is this an area where you think that we need clearer laws?
Executive Order 13526 is the currently operative executive order on national-security classification. The President is bound by executive orders until he’s not. The President can unilaterally rescind or amend executive orders, but he actually has to do it. So I don’t have a problem with the notion that a President can unilaterally rescind an executive order or make an exception to it. I just think that the rule of law depends upon any of those measures being memorialized in some respect that allows them to be used as proof later. ♦
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