The American political scene has been consumed with the recent news that FBI had raided former President Donald Trump’s Mar-a-Lago residence. While this case is still developing, one thing is clear: When it comes to the Department of Justice, there are two standards for treatment – one that handles Democrats with leniency and one that comes down hard on Republicans.
Think back to 2016, when it was revealed that Hillary Clinton improperly handled government documents and wiped her hard drive when she was serving as Secretary of State. During the investigation, Secretary Clinton was offered a voluntary interview with the Justice Department, her lawyers were granted immunity and the government promised to destroy the laptops of her aides after inspection.
Compare that to the treatment of Trump, as dozens of FBI agents wearing body armor and carrying automatic weapons raided Mar-a-Lago with a warrant based on the pretext of unlawful possession of government documents. Regardless of how one feels about President Trump or government documents, there is a clear double standard at play here.
Unfortunately, the raid on Mar-a-Lago is just the latest move in a series of vindictive, political actions from President Biden’s Justice Department. Under Merrick Garland’s leadership, the Department has sought to reverse other decisions made by President Trump.
For example, in April 2021 – just a few months after taking office – The Biden-Garland DOJ announced that it would try to reverse a grant of clemency issued by President Trump.
In 2019, Philip Esformes was sentenced to two decades in prison for his role in a health care fraud scheme. While some charges were left unresolved by a hung jury, those hung charges were taken into account during his sentencing. The case was largely concluded and Mr. Esformes was serving his time when Trump decided to grant him clemency in December 2020.
But with Trump gone, Merrick Garland’s prosecutors have been attempting to use a legal loophole to retry Mr. Esformes on a number of hung counts from the original trial – despite the fact that the hung counts had been taken into account during his original sentencing.
The Constitution grants presidents nearly unlimited latitude when considering pardon and clemency requests. By re-opening the Esformes case, the Department is embarking on a path that is not only unprecedented, but an affront to the Founders’ vision of presidential power.
After all, what is the value of a pardon or clemency if any president can undo those granted by their predecessor?
Whether it’s the FBI meddling in elections, the raid at Mar-A-Lago, or the unprecedented moves in the Esformes case, the Biden-Garland Justice Department is hell-bent on erasing President Trump and the decisions he made while in office. The glaring double-standards, politicization, and the “ends justify the means” ethos oozing out of the Justice Department are undermining the public’s confidence in the criminal justice system
It is clear that the Department of Justice has abandoned its façade of non-partisanship. It has gone rogue.
Etched above the doors of the Supreme Court are the words “Equal Justice Under Law.” Attorney General Merrick Garland and FBI Director Christopher Wray would be well advised to stop playing politics and ensure that justice meted out is indeed equal. They must restore the public’s faith in our criminal justice system. That means treating Republicans, Democrats, and Independents the same, and it means respecting the Constitutional right of the president – whomever that may be – to grant pardons and clemencies
The alternative is precisely what we scorn in banana republics, where former leaders are prosecuted and their legacies are systematically dismantled. We are better than that.
David Safavian is the General Counsel of the American Conservative Union Foundation’s Nolan Center for Justice. He is the former Chief of Staff of the United States General Services Administration (GSA).