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The F.B.I. Search of Trump’s Home Has No Precedent. It’s a Dangerous Gamble.


WASHINGTON — The fight between former President Donald J. Trump and the National Archives that burst into the open when F.B.I. agents searched Mr. Trump’s Palm Beach estate has no precedent in American presidential history.

It was also a high-risk gamble by Attorney General Merrick B. Garland that the law enforcement operation at Mar-a-Lago, the previous president’s sprawling home in Florida, will arise to accusations that the Justice Department is pursuing a political vendetta against President Biden’s opponent in 2020 — and a probable rival in 2024.

Mr. Trump’s demonization of the F.B.I. and the Justice Department during his 4 years in office, designed to undermine the legitimacy of the country’s law enforcement institutions at the same time as they pursued charges against him, has made it even harder for Mr. Garland to analyze Mr. Trump and not using a backlash from the previous president’s supporters.

The choice to order Monday’s search put the Justice Department’s credibility on the road months before congressional elections this fall and because the country stays deeply polarized. For Mr. Garland, the pressure to justify the F.B.I.’s actions can be intense. And if the seek for classified documents doesn’t find yourself producing significant evidence of against the law, the event could possibly be relegated by history to function one other example of a move against Mr. Trump that backfired.

Mr. Trump faces risks of his own in rushing to criticize Mr. Garland and the F.B.I., as he did in the course of the search on Monday, when he called the operation “an assault that might only happen in broken, Third-World Countries.” Mr. Trump now not has the protections provided by the presidency, and he can be way more vulnerable if he were found to have mishandled highly classified information that threatens the nation’s national security.

A variety of historians said that the search, though extraordinary, seemed appropriate for a president who flagrantly flouted the law, refuses to concede defeat and helped orchestrate an effort to overturn the 2020 election.

“In an environment like this, you could have to assume that the attorney general didn’t do that casually,” said Michael Beschloss, a veteran presidential historian. “And subsequently the criminal suspicions — we don’t know yet exactly what they’re — they must be fairly serious.”

In Mr. Trump’s case, archivists on the National Archives discovered earlier this 12 months that the previous president had taken classified documents from the White House after his defeat, leading federal authorities to start an investigation. They eventually sought a search warrant from a judge to find out what remained in the previous president’s custody.

Key details remain secret, including what the F.B.I. was on the lookout for and why the authorities felt the necessity to conduct a surprise search after months of legal wrangling between the federal government and lawyers for Mr. Trump.

The search happened as offended voices on the far-right fringe of American politics are talking about one other Civil War, and as more mainstream Republicans are threatening retribution in the event that they take power in Congress in the autumn. Representative Kevin McCarthy of California, the Republican leader within the House, warned Mr. Garland to preserve documents and clear his calendar.

“This puts our political culture on a type of emergency alert mode,” said Douglas Brinkley, a presidential historian at Rice University. “It’s like turning over the apple cart of American politics.”

Critics of Mr. Trump said it was no surprise that a president who shattered legal and procedural norms while he was within the Oval Office would now find himself at the middle of a classified documents dispute.

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For nearly 35 years, the tug of war over presidential records — and who controls them — has been a largely bureaucratic one waged within the halls of the National Archives and debated amongst lawyers in courtrooms.

Former President Richard M. Nixon spent nearly 4 years after Watergate fighting for control over hundreds of thousands of pages of presidential records and a whole bunch of hours of the audiotapes that helped force his resignation. Mr. Beschloss said that Nixon initially reached a cope with President Gerald R. Ford that will have given him control over his papers in addition to the flexibility to destroy them. But an act passed by Congress after Nixon left office in August 1974 forced him to take his fight to court. He eventually lost within the Supreme Court, in a 7-to-2 decision.

The dispute led to the passage in 1978 of the Presidential Records Act, which for the primary time made it clear that White House records are the property of the federal government, not the president who created them. Since then, presidents from each parties have haggled over how and when the archives may release those documents to the general public.

Presidents and their aides have also been subjected to other laws in regards to the handling of classified information. Over time, a handful of top federal officials have been charged with illegally handling classified information.

David H. Petraeus, the Army general who served as C.I.A. director under former President Barack Obama, admitted in 2015 that he provided his highly classified journals to his lover, pleading guilty to at least one count of unauthorized removal and retention of classified material, a misdemeanor.

Sandy Berger, who was national security adviser for former President Bill Clinton, paid a $50,000 high-quality after pleading guilty to removing classified documents from the National Archives in 2003 to organize for his testimony to the 9/11 Commission.

But there has never been a clash between a former president and the federal government just like the one which culminated in Monday’s search, said Lee White, the manager director of the National Coalition for History.

Mr. White, who has met continuously over time with officials on the National Archives, said they typically work hard to resolve disagreements about documents with former presidents and their advisers.

“They have an inclination to be deferential to the White House,” Mr. White said of the lawyers on the National Archives. “You realize, these questions come up about presidential records and so they are like, ‘Look, our job is to advise the White House.’ But they should not, by nature, an aggressive group of attorneys.”

Mr. Beschloss and Mr. Brinkley each said the search of Mr. Trump’s house had the potential to turn out to be a flash point within the struggle between those investigating the previous president’s actions and the forces who supported Mr. Trump’s frantic efforts to remain in office.

But they said there have been also risks for Mr. Trump and his allies on Capitol Hill, who on Monday rushed to attack Mr. Garland and the F.B.I. within the hours after the search.

“You now have Kevin McCarthy — something else we’ve never seen before in history — making ugly threats to an attorney general, obviously attempting to intimidate him,” Mr. Beschloss said.

Mr. Trump’s defenders didn’t wait to seek out out what evidence the F.B.I. found and even sought before using the search to ratchet up longstanding grievances that the previous president stoked throughout his time in office. Senator Marco Rubio, Republican of Florida, quickly distributed a brief video on Twitter accusing the Biden administration of acting just like the regime of a dictator in a third-world country.

“That is what happens in places like Nicaragua,” Mr. Rubio said within the video. “Where last 12 months each person who ran against Daniel Ortega for president, each person who put their name on the ballot, was arrested and remains to be in jail.”

“You may attempt to diminish it, but that’s exactly what happened tonight,” Mr. Rubio said.

The historians said the events are a test of the resilience of American democracy when it’s under assault.

“We’re in the midst of a neo-civil war on this country,” Mr. Brinkley said. “This can be a starkly unprecedented moment in U.S. history.”

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