So many unanswered questions.
A ttorney general Merrick Garland decided to make a statement about the Don’t You Dare Call It a “Raid” in Mar-a-Lago.Clearly the statement wasn’t planned: It was abruptly announced, he ran several minutes late in scrambling to get started, spoke for maybe five minutes, and took no questions.
Some thoughts.
1. The slapdash nature indicates that Garland is reacting, which is never a position the Justice Department wants to be in. Law enforcement likes to be on offense and doesn’t do defense with aplomb. In part, the AG is reacting to former President Trump’s public statements — more on that in a moment. But another aspect of this is that Garland had been portrayed as being more of a passenger on the cruise than captain of the ship. Maybe his first instinct was to keep some distance from the search because it was bound to be widely criticized, but he must have then realized that he was going to be blamed anyway and stood to be even more harshly judged if it looked like subordinates were running his Justice Department. So on Thursday he made it clear that he personally authorized the seeking and execution of the warrant. Great . . . but he could have done that Monday.
2. Now, back to playing offense and the provocation of Trump’s commentary. Garland’s short statement was intended to put Trump back on his heels. The former president has done a lot of telling and no showing. That is, for all the bombast about witch hunts and being double-crossed while in the midst of cooperating, Trump did not do what it was in his power to do at any point: publish the warrant.
I’ve made the point several times that when we talk about “the warrant,” we are actually referring to two different things: (a) the formal warrant, a short document signed by the magistrate-judge, which describes with some specificity (apparently in an appendix) what the agents are authorized to seize; and (b) the probable-cause affidavit, which is sworn out by an FBI agent and relates the probable cause to believe both that a crime has been committed and that evidence of the crime is likely to be found in the place to be searched.
The affidavit is filed under seal with the court. It is not shared with the person whose premises are searched (if charges are ultimately filed, the accused gets it in discovery). But federal law requires the agents to leave a copy of the warrant, along with an inventory of what was taken, at the premises. So the Trump camp has had the warrant since Monday. Rather than be transparent about that, Trump people have made disingenuous statements about whether the agents provided a copy of the warrant and the inventory, whether Trump has seen it or at least had it read to him, etc. But the warrant and the inventory were left at Mar-a-Lago, as required — Garland said Thursday that they were given to a Trump lawyer who was on site during the search; and other Trump lawyers indicated that they had the warrant but wouldn’t be making it public at this time.
Garland shrewdly exploited Trump’s doublespeak. First, he said the Justice Department would be moving to unseal the warrant, which highlights that this would be unnecessary if Trump had made it public, and that, while the DOJ is fine with the public seeing the warrant, Trump clearly isn’t. Second, to twist the knife, Garland is taking the position that Trump should be given the opportunity to object to the unsealing. At about midnight, Trump belatedly brayed that he demands release of the documents, but he still has not released them himself, and it is clear that he’s merely acquiescing to Garland’s initiative.
Well played.
3. As for the rest of Garland’s performance, meh. He doesn’t project confidence. He said the DOJ’s rule of the road is to gather evidence by the least intrusive means, but he didn’t explain why, in this case, that was a warrant, rather than a subpoena or an informal request. Garland must figure that if he says the protocol is to use the least intrusive means, we’ll all assume that the warrant must have been necessary here. But this hyper-political DOJ does not get the benefit of the doubt.
Trump has claimed that he’s been negotiating, that his counsel and DOJ had amicable discussions up to June, and that he’d have given the government whatever it wanted if the FBI and DOJ had just asked. Maybe he’s not giving a complete, accurate account, but at least it’s an account. By contrast, Garland mouths his “least intrusive means” standard, but in his remarks, he never claimed that Trump had been recalcitrant, that Trump had refused to comply with a request or a subpoena. So why should we believe that the don’t you dare call it a raid was necessary?
On this record, Garland’s assertion that the DOJ should use the least intrusive means of acquiring evidence sounds more like a confession of error than a defense of the search warrant.
4. If a search warrant was supposedly required because of the highly classified nature of what was at issue, then why now?This supposed emergency did not just happen. It was the same emergency when the DOJ first learned about the situation in early 2022, and it was the same emergency when the DOJ met with Trump in June 2022 — and apparently didn’t demand the return of the highly classified materials. What suddenly made it an emergency now? Garland didn’t say.
5. On the other hand, if you believe, as I do, that what the DOJ is really interested in is making a Capitol riot case against Trump, then the timing makes perfect sense.
In June, as the high-profile House January 6 committee began its summer docudrama series, the Democratic base had a meltdown over whether Garland was committed to the holy grail of indicting Trump. Suddenly, DOJ ratcheted up activity. In late June, totally unnecessary search warrants were theatrically executed for the communications devices of two lawyers key to the January 6 “stop the steal” campaign, Jeffrey Clark and John Eastman — 18 months after the fact. Grand-jury subpoenas were then issued to former vice president Mike Pence’s advisers. Last week, more grand-jury subpoenas were issued to the two top lawyers in Trump’s White House counsels’ office. Then, just a day after the Mar-a-Lago search, the FBI executed a search warrant on a member of Congress, Representative Scott Perry (R., Pa.), as he walked on the street on vacation with his family. All of these evidence-gathering initiatives are patently aimed at building a case that Trump and his underlings conspired to defraud the government and obstruct Congress’s counting of state-certified electoral votes . . . or at least to assure the Democratic base that Garland is really, really trying to build that case.
Do you really think the search at Trump’s Florida estate, which happened smack in the middle of all this very publicly ratcheted-up investigative activity centering on January 6, has nothing to do with January 6? When the main guy they’re trying to make the January 6 case on is Trump? Really?
6. Garland’s preening defense of Justice Department lawyers and FBI agents is touching, but misleading. We have a two-tiered justice system, which is utterly biased against Trump supporters while coddling progressives. Garland’s claptrap about how evenhanded law enforcement is on his watch is laughable. But understand: By and large, Americans who are angry about politicized federal law enforcement are not angry at line prosecutors and FBI agents. They are angry at Justice Department and FBI leadership. They are angry at Garland and FBI director Christopher Wray, who make policy, not at the men and women who investigate the cases.
Garland is lamely intimating that harsh criticism of him and the Biden administration is actually an attack on federal law enforcement writ large. It’s a cheap rhetorical trick, and it’s not fooling anyone.
7. Finally, let’s address the late-breaking news, leaked by government officials to their notetakers at the Washington Post, that the super-top-secret classified information in Trump’s possession somehow involves nuclear weapons. (Yes, the administration desperate to renew the deal in which Iran, the world’s leading state sponsor of international terrorism, gets an American-abetted civilian nuclear program that leaves Tehran just inches away from becoming a nuclear-weapons power, somehow has its hair on fire over the possession of nuclear intelligence by a former U.S. president, who would have that intelligence in his head even if it weren’t written in documents.)
So many questions. When did DOJ learn that Trump had these materials? How many months or weeks went by between then and the search? Does DOJ know whether Trump declassified the intelligence? Did DOJ ask the former president to return the documents? Did DOJ issue a subpoena demanding them back? If the information is the most sensitive, most highly classified information in the government’s possession, could it be possible that all of the dozens of FBI agents dispatched to execute the Mar-a-Lago search had high enough security clearances to see it? What provisions did the FBI make for the physical handling of such mind-bogglingly vital intelligence?
And when did Merrick Garland find out about this? Given the unprecedented gravity of the situation, what has he been doing every day since he learned about it? Did he call Trump to ask for its return? Did Garland or other government officials inform President Biden about Trump’s possession of this top-secret information that could have deeply imperiled the United States if it fell into the wrong hands? When was Biden told about it? What has the president done about it in the months, days, or weeks since then? If our security is hanging by a thread because of Trump’s possession of these documents, why is the White House saying Biden knows nothing about DOJ’s investigation?
You’ll be shocked, I’m sure, to hear that, at his press conference, Garland did not address any of these questions raised by these government leaks.
It’s worth remembering then–FBI director James Comey’s infamous Hillary Clinton press conference on July 5, 2016:
Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.
For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).
None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.
Mind you, this was the final, sanitized edition of Comey’s remarks — after the FBI edited out how much President Obama knew, and how likely it was (rather than merely “possible”) that hostile foreign intelligence services had had a field day infiltrating Clinton’s criminally reckless, non-secure, homebrew server system, patently designed to undermine government record-keeping requirements.
Nevertheless, no search warrants for Hillary. No dozens of agents descending on the Clintons’ Westchester manse. When the FBI wanted to seize evidence from Clinton, the Obama–Biden Justice Department forced the bureau to negotiate with Clinton’s lawyers. When the Clinton lawyers demanded limits on what the FBI could inspect, the DOJ sided with the lawyers. And charges? The FBI not only wrote up Comey’s statement dropping the Clinton email investigation months before interviewing Secretary Clinton and other key witnesses; the bureau allowed her co-conspirators to sit in on her final farcical interview — as her lawyers! And when Clinton gave preposterous answers to the agents’ questions, there was no thought of charging her with false statements — she was sent on her way, to go run for president.
Nuclear weapons, huh? The Biden administration, while groveling to Iran to rejoin a catastrophe of a deal that would put our enemies, who are actively trying to murder former American officials, on a glide path to nukes, is now worried about Trump’s possession of nuclear intelligence?
That’s nice.