The secrets of Mar-a-Lago

The back entrance to the Mar-a-Lago estate of former US president Donald Trump in Palm Beach, Florida.

Well, that didn’t settle anything. We’re referring to Friday’s release of the warrant and property list that caused Attorney General Merrick Garland to send FBI agents to search Donald Trump’s Florida home. This seems to have been a dispute over classified documents after all, but did that really require an unprecedented and politically polarising search of a former President’s residence?

The documents show that Federal Bureau of Investigation agents carried away 20 boxes of items and memorabilia. They included 11 sets of classified documents, some of which were marked top secret or higher in classification and required special storage and the highest security clearances.

Donald Trump speaks at the Conservative Political Action Conference 2022 (CPAC) in Orlando, Florida.

The list of seized documents included no details. But someone leaked to the Washington Post that among the seized items were “classified documents relating to nuclear weapons.” That sounds ominous, which may have been the point of the leak, and it fed the revival of perfervid media speculation that Mr. Trump is a foreign agent looking to sell the secrets.

Let’s stipulate that mishandling classified documents is bad practice and can be criminal. The FBI had cause to be concerned if it had reason to believe that secrets were improperly taken away or stored in Mar-a-Lago. It wouldn’t be the first time Mr. Trump was ill-disciplined about secrets.

People wave as Former President Donald Trump drives by after sitting for a deposition at the office of the NYS Attorney General on August 10.

But it has been 18 months since Mr. Trump left the White House, so why the sudden urgency that required Monday’s full-scale search? If the documents were serious nuclear secrets, you’d think the Justice Department would have demanded their return as soon as that was known. And if such documents are floating around Mar-a-Lago, why tell the world via a leak in the Washington Post?

Mr. Trump claims to have nothing to hide and said “it was all declassified.” After Mr. Garland requested on Thursday that the federal judge who signed off on the warrant publicly release it, Mr. Trump didn’t object. When he was Commander in Chief, Mr. Trump had very broad powers of classification, though we can’t recall the extent of such power ever having been litigated.

That could make it hard to prove a criminal case against him, though we don’t know what other evidence the Justice Department has about Mr. Trump’s handling of the documents. Media reports say he was served a subpoena for the documents some weeks ago. Did he resist, and on what grounds?

The warrant also mentions U.S.C. 793, also known as the Espionage Act, which the press is flogging as the big story. But that law has rarely been employed over decades, and it is intended to prosecute individuals who transmit secrets to foreign agents or governments. Charging Mr. Trump under the Espionage Act merely for keeping at his residence classified documents that he claims were declassified would be a gross prosecutorial overreach.

As is his wont, Mr. Trump is also sowing public confusion by saying that perhaps the FBI planted documents to set him up. There’s no evidence for this, but the sordid history of the FBI’s Russia collusion falsehoods means that many people might believe it.

That’s the political reality no matter how many times Mr. Garland chants “no one is above the law.” That cliche is obviously true, or should be. But the search of the home of a former President and perhaps future presidential candidate is an inherently political act. It requires overwhelming evidence to persuade the country, not merely 12 jurors. It requires judgment and discretion about what is in the best interests of the nation.

Mr. Garland’s FBI search warrant has put a badly divided country on a perilous political course. He will need much more evidence than what is in the warrant, and a much more serious violation of law, to justify a prosecution.