Merrick Garland Goes Solo in Mar-a-Lago Search

There is, however, an argument for it. Because presidential ignorance here (or at least the pretense of it) serves a useful political game. And it isn’t finished playing out.

When the media began asking questions last Tuesday, White House press secretary

Karine Jean-Pierre

said: “You know, the president and the White House learned about this FBI search from public reports. We learned, just like the American public did yesterday, and we did not have advance notice of this activity.” Ms. Jean-Pierre went on to say the president “has been very clear” that the Justice Department “conducts investigations independently.”

And the capper: “I’m just not going to comment on any reaction to what happened yesterday. We are going to refer any incoming to the Department of Justice.” She repeated that several times in response to different questions about the raid.

Notwithstanding Mr. Garland’s presser Thursday, the Justice Department hasn’t been forthcoming with key details because the Mar-a-Lago search is part of a continuing criminal investigation. Which means the American people get no answers from anyone.

Whatever this is, it isn’t the way the Framers thought about making democratic government accountable to the people. Contrary to what Mr. Biden seems to believe, the authors of the Constitution never envisioned anyone in the government being independent—except from the other branches.

Certainly we hope the raid fulfilled the objective criminal and statutory requirements—and wasn’t instigated for partisan reasons by the White House. We can all imagine what would happen if a president abused his power by badgering his attorney general to harass political enemies and go easy on political friends. Mr. Trump was himself often accused of this when he was president. A politicized Justice Department isn’t what anyone wants.

But the flip side is this: Do Americans really want an unelected attorney general making the unprecedented decision to send 30 FBI agents to the home of a former president and possible presidential candidate without at least running it by his boss, the sitting president? Given how extraordinary the move was, wouldn’t a president want to have it run past him first?

Especially when it comes, as this does, against the backdrop of the FBI and Justice Department having lost the trust of millions of Americans by their actions of the past few years. FBI agents were caught making highly unflattering remarks about Mr. Trump and his supporters while pursuing a case against him based on a fake dossier fed them by the Hillary Clinton campaign. Not to mention one FBI official admitted to doctoring an email submitted to the Foreign Intelligence Surveillance Act court to help make the case that Trump campaign adviser

Carter Page

was a Russian agent.

It’s true that in the years since our founding, many barnacles have grown on the original understanding of constitutional independence. Independent counsels, inspectors general and the Foreign Intelligence Surveillance Court are a few of the more recent contributions. But the record of these unelected overseers is dubious. In some cases they might have improved accountability. But in others they have eroded it.

Take the FISA court. The Carter Page warrant shows that it effectively insulates officials who deploy the most formidable powers of the federal government from the consequences of what should be an extraordinary decision: spying on a fellow American. Without a judge to give them cover, FBI agents and Justice officials would be far more responsible for their actions.

In some ways this is another expression of the growing administrative state. Today there exist dozens of agencies not really under the president’s control, making executive decisions that affect the lives and livelihoods of millions of ordinary Americans. When they are interpreting a question about which Congress was either ambiguous or silent, they effectively make law.

The cry is thus that unelected bureaucrats are exercising unchecked power against Americans. But that’s only half the story. The dirty secret is that many of the elective officeholders whose authority is being usurped don’t complain because it also means they can get what they want done without assuming any of the political cost. It’s the same with pols who wink at activist courts usurping their lawmaking functions because they agree with the outcome and are spared any of the political heat.

Maybe what President Biden says is true: He and everyone else in the White House had no idea the FBI was executing a search at Mar-a-Lago until they saw it on television with every other American. If so, that’s even more disturbing.

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In January I suffered a minor stroke. The many thoughts, notes and prayers I’ve received in the months since from Journal colleagues and readers have been much appreciated. This column marks the return of Main Street to its regular Tuesday slot.

Write to mcgurn@wsj.com.