I did a post late last night (or was it earlier this morning) regarding Attorney General Merrick Garland’s short press statement on Thursday.
With more time to think about it and additional information coming in from various places, I still think there is some advantage for the Justice Department in having the AG break protocol and make remarks. Coverage on the Trump-friendly side is amusing this morning if you understand where we’re at. It is running with “Trump demands release of the warrant.” I don’t understand why you would demand that someone else release something that it’s been completely within your power to release.
Trump has had the warrant and the inventory of items seized since the FBI executed the search on Monday. He doesn’t need court permission to publicize it. He could have done that at any time. He could do it this very moment and at least be able to say that he did it before the court did it. He only started to “demand release of the warrant” when Garland said that the DOJ would ask the court for permission to unseal it — which Garland only did because Trump was talking about the search but withholding the warrant . . . while some people close to Trump were suggesting to media allies that he hadn’t seen it, and that the FBI might have flouted their legal obligation to provide Trump’s representatives with a copy of it.
All that said, however, there is a downside for Garland in speaking.
What people most wanted to hear from the AG yesterday was why it was supposedly necessary to proceed with a highly intrusive, historically unprecedented search of a former president’s home at this point. Was Trump uncooperative? Did the DOJ ask him for something he refused to provide? Did the DOJ issue a subpoena that he refused to comply with? Did something happen between the last time the DOJ officials met with Trump and his team in June that created an emergency requiring an unprecedented search warrant in August?
And is Garland sure that the materials in Trump’s possession are classified?
Last night, the Washington Post claimed that Trump had retained top-secret nuclear-weapons intelligence. The report relies on anonymous sources whom the paper does not even claim are agents involved in the investigation. Trump has denied it (“Nuclear weapons is a hoax, just like Russia, Russia, Russia was a hoax”). Let’s assume for argument’s sake, though, that what the government is leaking is true. Sure, it would be humiliating for the former president if his defense is that he declassified precious national-defense secrets just so he could keep them at his house as a cool souvenir. But humiliation is very different from criminal misconduct.
For the Justice Department to obtain a search warrant, it needs a crime. The obvious crime here would be mishandling highly classified information. Yet, if Trump declassified documents while he was still president, then they no longer constitute classified information that he could criminally mishandle. It would be totally understandable that the Justice Department and intelligence agencies would want the physical information back, but getting it back by search warrant requires probable cause of a crime, not a demonstration of governmental prudence.
This is important. There is a good deal of reporting about Trump’s having likely violated the Presidential Records Act. But the PRA is not a criminal statute. Violating it may be illegal, but it’s not criminal.
That doesn’t make the PRA irrelevant. I believe the Justice Department would take the position that, once the agents had a valid warrant to search for classified information, the PRA would justify their seizure of any government records (on the principle that agents are not required to turn a blind eye to illegality just because it is not covered by the search warrant). Indeed, to repeat myself, I don’t believe this escapade is about classified information — at least not primarily; I believe the FBI and the DOJ are fishing for evidence that could help them make a January 6 case against the former president. But regardless of whether I am right about that, the fact remains that they need probable cause of a crime to get a warrant, and under the circumstances, we must presume that the relevant crime is the mishandling of classified information.
Of course, here, the suspect just happens to have been the one official in all of government who could declassify whatever information he chose to declassify. Even if the information at issue is highly sensitive, top-secret, “special-access program” intelligence, it would not be classified if he declassified it.
So here is what people are interested in: Did Trump do something hostile or uncooperative which left Garland no reasonable alternative but to seek a warrant — something worth blowing up a 230-year norm of not using hardball investigative tactics against a former president of the United States? And is Garland sure there was probable cause of a crime here that justify the issuance of a search warrant?
If Garland had made no statement, we would assume affirmative answers to these questions. We would assume that he just wasn’t explicitly providing such answers because (a) the DOJ does not speak publicly about investigations, and (b) he got a magistrate-judge to sign the warrant, so he can bank on the court’s finding of probable cause.
But he did speak. If you’re going to speak, you’ve got to address the questions that actually matter to people. He didn’t.
In the meantime, Trump is speaking. He says he cooperated with the FBI and the DOJ and is stunned that, after two months of silence, they suddenly went to DEFCON 5 with a warrant to rifle through his home. When Garland speaks but does not refute, or even attempt to refute, what the former president has said publicly, it is reasonable for people to deduce that he is not in a position to rebut Trump’s claims.
One final, related point. The more one thinks about it, the more incredible it seems that the White House knew nothing about this. The Justice Department — in particular, those leaking on its behalf — speaks as if the issue here were the peril the nation would be in if the intelligence in Trump’s possession fell into the wrong hands. That’s not a law-enforcement problem; it’s a national-security problem. Even if Biden were right that he must never “interfere” in the Justice Department’s work (and he’s constitutionally illiterate on this point because the Justice Department exercises his power as his delegate), we are not talking here about political interference in the administration of justice. We are talking about the defense of the United States from hostile forces. That is one of the president’s main duties — probably his most consequential and solemn duty.
So how does Garland not tell Biden? How does Biden not call Trump, behind the scenes and without political noise, and beseech him to cooperate in returning and safeguarding this intelligence, regardless of whether Trump had already declassified it? How does Biden not call, say, Senator Lindsey Graham and former secretary of state Mike Pompeo and say, “Look, he listens to and trusts you guys. Go down there and talk to him. Get him to help us get this stuff back where it belongs. Let’s not turn this into a debacle.”
I can think of a million things they might have done short of a search warrant. But I can’t think of a single scenario in which, if the facts are as government sources claim they are, Biden would not have been in the loop.