Below is my column in the Hill on the upcoming filing of the Justice Department on proposed redactions to the affidavit that led to the Mar-a-Lago raid. It will be the fifth chance for Attorney General Merrick Garland to take a modest step to assure concerned citizens over the basis or motivation for the raid.
Here is the column:
In a three-minute press conference following the FBI raid on Donald Trump’s Mar-a-Lago home, Attorney General Merrick Garland cut a defiant figure, condemning critics of the Department of Justice (DOJ) and the FBI: “I will not stand by silently when their integrity is unfairly attacked.” He then left the stage without taking questions or answering that criticism.
It was a signature moment for Garland, who often responds to controversies with belated, rote remarks. His brief comments had all of the substance of a Hallmark card that read, “Trust us, we’re the government.” Yet trust has to be earned, not simply demanded.
This coming week, Garland has another opportunity to show leadership and reassure the public by ordering substantive disclosures in the proposed redacted affidavit justifying the raid. If not, this will be the fifth missed opportunity to demonstrate that the DOJ deserves the public’s trust.
The indignation expressed by Garland in his public remarks seemed to ignore legitimate concerns over the DOJ’s motivations and record in past Trump-related investigations. Both the FBI and DOJ have documented histories of false court statements and bias against Trump, leading to the collapse of the Russia-collusion allegations and the firing of high-ranking officials.
Garland was aware of that history and the troubling context when he ordered the unprecedented raid on the home of a former president and the expected 2024 political opponent of President Biden. He may be justified in ordering it, but he cannot simply dismiss critics as unhinged extremists.
It is equally troubling that, at every earlier opportunity to make a modest step to assure such citizens, Garland has failed:
The Negotiations
It is unclear why Garland opted for a search warrant rather than a second subpoena like one used in June to seize boxes of documents from Mar-a-Lago. Trump’s team claims to have communications from the FBI reflecting that they cooperated with the search, then followed the FBI’s request to reinforce security on a storage room. It is unclear what communications occurred after the June meeting — or, if remaining documents were a concern, why the DOJ did not immediately issue a second subpoena. While the DOJ claimed time was of the essence to retrieve national security material, Garland reportedly waited weeks before signing off on the search warrant application and the FBI waited a weekend to execute the search. There was plenty of time to seek a voluntary surrender or consensual search.
The Warrant
The second opportunity occurred when the DOJ sought the warrant. While knowing that every aspect of the search would be scrutinized, it adopted language so broad that it was virtually the legal version of Captain Jack Sparrow’s “Take what you can … Give nothing back.” It allowed the seizure of any box containing any document with any classification of any kind — and all boxes stored with that box; it allowed the seizure of any writing from Trump’s presidency. If Garland wanted to assure Americans of an apolitical motive, he could have crafted that warrant more narrowly. Instead, the government scooped up everything, from passports to attorney-client material.
The Raid
Garland’s third opportunity came with the raid itself. Rather than descending on Trump’s home with 30 to 40 officers and a dozen vehicles, this is a search that could have been done by a few inconspicuous agents without risk. They didn’t have to arrive by Uber, but they also didn’t need to arrive like this. Instead, as with other Trump targets from Roger Stone to Paul Manafort and Peter Navarro, the DOJ chose the most heavy-handed, overwhelming-force option.
The Review
After the raid, Garland missed his fourth opportunity. It was obvious the raid would ignite a country that is a tinderbox, particularly before a major election. Garland could have issued a statement reassuring the public and immediately secured the documents, asking for an independent special master or federal magistrate to sort out any material beyond the warrant’s scope, including attorney-client material. That would have ended speculation about a pretextual search aimed at finding incriminating evidence of other crimes, including material related to the Jan. 6 riot. Garland not only didn’t take such a precaution but reportedly refused Trump’s request for such an appointment. Garland then compounded the problem by refusing to address basic concerns in his brief presser, including the allegation of a pretextual search.
The Affidavit
Garland now has a fifth opportunity in responding to a magistrate’s order to recommend parts of the affidavit for public release. Garland initially refused to release the affidavit, then implausibly asserted that nothing in it could be released in the interests of national security. Most affidavits have sections that can be released without damaging an investigation or compromising witnesses, including information already known to the target. In this case, Garland could, at a minimum, release the account of the communications with the Trump team. It may be discomforting for DOJ officials accustomed to total control over such information, but it would reassure the public in a growing political crisis.
Obviously, after insisting no disclosures could be made, it is now doubly difficult for Garland to reverse himself. Such a bold move would be out of character for Garland, who often appears more of a passenger than the driver of his own department. But he needs now to be proactive rather than reactive to this controversy — by overruling those in the DOJ who pushed for the raid and demanded a total bar on disclosures of the affidavit.
What is clear is that Garland’s “trust us” mantra has done little to assuage concerns. Indeed, that seems almost comical to many people, given the Crossfire Hurricane debacle and the fact that this investigation is being handled by the same section.
Transparency on the search may push some at the DOJ outside of their comfort zone, but the raid has already pushed many on both sides of the political spectrum to the brink. One MSNBC host declared that the “civil war is here” while, in a shocking Rasmussen poll, 46 percent of Americans now view the FBI unfavorably and 53 percent believe it is being misused by the Biden administration. Even assuming that Rasmussen trends conservative, those numbers likely reflect the view of many of the more than 74 million people who voted for Trump in 2020.
So far, Garland has done little to earn the trust of almost half of the country. In this and other controversies, he has demanded respect but refused to take even modest measures to justify it.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.
Under the Presidential Records Act, Trump is not supposed to be in possession of any presidential records from the Trump presidency.
I look forward to reading Trump’s lawyers’ motion. If they ever get around to filing one.
Exactly what investigation would be compromised by release of the affidavit? It cannot be an investigation into allegedly missing public documents, since the government apparently knows what documents they believe are missing. If there is another investigation that may be affected by the documents, are they not admitting that the search was pretextual? In any case, how did the National Archivist acquire a Gestapo? He’s supposed to be a librarian.
Classified documents aren’t public. As for “what investigation,” we only have hints about that from the search warrant, but the hints include investigation of possible obstruction, possible destruction of documents, and possible illegal possession of national defense information.
Anonymous:
So the documents may be used to support criminal charges. The supposed status of the documents as belonging to the government is a pretext. Seized documents that are private in nature may still be used against him,
I’m not sure what private documents you’re referring to that might be used against him. The only ones I can think of would be otherwise privileged documents that are subject to the crime-fraud exception. Is that what you’re referring to? If not, what private documents are you referring to that might be used against him?
Without knowing what he was charged with, it is hard to say what document might be harmful. If he exchanged letters with Vladimar Putin, it could be called proof of Russian collusion. If he wrote a letter saying that he thought the 2020 election was stolen, he could be charged with “incitement”. If he had a foreign bank account, he could be charged with money laundering, Any document can be given a damaging spin in certain circumstances. Beyond the legally damaging documents, there can be embarrassing pictures that will be leaked to friendly media. It shouldn’t be necessary for Donald Trump to justify his right to privacy,
OK, I mistakenly replied as one of the Anonymous commentators. My apologies.
In the Stranger Things upside down world, when an individual is found to have stolen classified documents that belong to the government, law enforcement needs to explain itself when it gets them back.
I mean, it looks like he has been caught red-handed. And he has given no reason for why he had them. And he tried to claim they were planted, but that too was a lie.
One of the most incisive descriptions of Merrick Garland I’ve read at this site is that he is not Attorney General material. His temperament is that of a Judge, a position for which he was well suited. AGs need to be made of much stronger stuff. There is no cure for what Garland lacks, so we’ll have to bide our time until he’s no longer the AG.
No agency (or any private organization) is “monolithic” – it’s not that simple. You can have good patriotic employees that are given “illegal unconstitutional orders” from their organization’s top management (mostly politicians).
Those subordinate employees/contractors – like all of us – have rent, mortgages, college tuition costs and other responsibilities.
Whether a local police officer or FBI official, if a subordinate refuses to follow orders from top management they risk not only their career but their family.
So no agency is “monolithic” – you can have good patriotic police officers or FBI agents given “illegal unconstitutional orders” by their police-chiefs or agency-heads. Sometimes solutions to complex problems don’t fit on a bumper sticker, it’s more complicated than that.
The extreme left shouldn’t support “Defunding the Police” and the extreme right shouldn’t support “Defunding the Federal Police”. A better strategy would be to “constitutionalize” the top-management so they stop giving illegal orders to their employees. Subordinate employees/contractors follow orders, direct the reforms towards top-management.
“ Garland’s third opportunity came with the raid itself. Rather than descending on Trump’s home with 30 to 40 officers and a dozen vehicles, this is a search that could have been done by a few inconspicuous agents without risk. They didn’t have to arrive by Uber, but they also didn’t need to arrive like this.”
Yes, they did have to descend on MAL with 30 or 40 agents because, they DID quietly get the first set of boxes that Trump’s lawyer assured the FBI and the archives that it was everything. But what Turley conveniently leaves out is that the archives found out that they didn’t get everything AND it was discovered that there were TS/SCI documents still unaccounted for.
AFTER giving Trump the chance of doing this quietly TWICE. The DOJ didn’t take kindly to being lied to AND learning that Trump still had very sensitive classified documents illegally in his possession forced Garland to issue a search warrant. Turley loves to ignore important facts in order to feed the rage of his gullible Trump supporters.
The affidavit that he expects will be heavily redacted and devoid of much of the information he thinks everyone should know. Turley keeps stupidly or deliberately forgetting that there ARE ongoing criminal investigations on Trump. The DOJ is not going to divulge critical information that will undermine an investigation or a case. The time to have that information is when there are charges or and indictment. Turley as a “law professor” should readily know this.
“what Turley conveniently leaves out is that the archives found out that they didn’t get everything AND it was discovered that there were TS/SCI documents still unaccounted for.”
where was NARA/GSA when the boxes were being packed for shipment. SOP for the transfer of records whether in the private or public sector is that each box is numbered and each box has a detailed inventory. Which NARA/GSA staffer approved the transfer of the boxes from the WH to Mar-a-lago.. in my 40 yr career i’ve been involved in the transfer of 1000s of boxes of records from one location to another. We knew what was in each box
“ where was NARA/GSA when the boxes were being packed for shipment. SOP for the transfer of records whether in the private or public sector is that each box is numbered and each box has a detailed inventory.”
They were numbered and NARA knew what was in them. NARA expect those boxes to be sent to NARA, but either a trump staffer or Trump forced staffers to take those boxes with him.
Only after NARA noticed certain boxes missing did they initially ask for them back.
We’re you there?
“it was virtually the legal version of Captain Jack Sparrow’s “Take what you can … Give nothing back.” ”
What BS. The boxes were numbered, and if Turley simply paid attention to the numbering on the manifest, he’d know that they didn’t take most of them (the boxes had labels with numbers, and they took boxes A-1, A-12 through A-18, A-22 through A-24, A-26 through A-28, A-30, A-32 through A-35, A-39 through A-43, A-71, and A-73, while leaving the majority of the boxes labelled A-1 through A-73). And if Turley had paid attention to all of the relevant communications, he’d also also know that there was a filter team on site.
“the government scooped up everything, from passports to attorney-client material.”
They quickly returned the passports, which were outside the scope of the warrant. We do not know that they took attorney-client material. Trump claiming something doesn’t make it true, especially if the claim is made in a context where it’s legal to lie; he hasn’t had his lawyers claim to the court that protected attorney-client material was taken, and if he does, it will then be up to the court to determine whether the crime-fraud exception applies.
“Garland now has a fifth opportunity in responding to a magistrate’s order to recommend parts of the affidavit for public release.”
And in a few days, he’ll submit his proposal to the court. But the judge — not Garland — is the one who’ll make the final determination about what to unseal,
“The boxes were numbered”
Who numbered the boxes, and where was the record of the numbers kept? When one moves documents, aren’t records kept? Do you think Trump did the labeling and carried them in his personal handcart, or do you think someone else lugged them from the WH to MAL? Do you think these records appeared after the June 3 search? Do you think Trump entered the White House after Biden’s inauguration and stole them?
There are a lot more questions that need answers, but you don’t seem to be the one able to do so.
” We do not know that they took attorney-client material. “
You seem to know a lot until you don’t know. One has to wonder why along with the honesty of your statements.
“But the judge — not Garland — is the one who’ll make the final determination about what to unseal,”
Fine, I am glad you agree with Turley’s assessment that Garland wasted 5 chances to earn the public trust on MAL.
Totalitarian thugs like Garland do not care in the least about purchasing public trust. Garland cares only about perpetuating the power of the democratic party and suppressing all opposition, nothing more and nothing less. I never thought I would write such a sentence about a US Attorney General of either party, but Garland is a lying thug who has weaponized the DOJ as no other AG in history. If I had written such a sentence 10 or 20 years ago, I would have had myself committed to an asylum. However, the Obama and Biden administration are perverted the law unlike any other administration and the media MSM and Tech giants applaud every move. We are close to crossing a Rubicon where there is no turning back. Sadly, voices like Turley have little or no impact on the body politic
Barry Soertero is orchestrating all of this. I only hope to live long enough to see his “unmasking” as the brains (?) behind Biden. Dr. Jill should do time for elder abuse.
“ It is unclear why Garland opted for a search warrant rather than a second subpoena like one used in June to seize boxes of documents from Mar-a-Lago.”
Is Turley really a law professor? If the first subpoena was not complied with why would a second one be and different. Turley is just being stupid here. He ignores the fact that highly classified documents were indeed in MAL and nothing says urgency than “let’s issue a second subpoena”. Really? The DOJ had a real legal reason to do a search warrant because of the sensitivity of the classified documents that WERE certainly found at MAL. Turley’s ignorance is very surprising given his stature as a “law professor”.
Turley is critical of Garland because he revealed little about the “raid” and the details Turley KNOWS cannot be revealed because there is an ongoing criminal investigation. As a law professor, Turley should know that Garland can’t divulge “substantial details” without compromising the ongoing investigations. It’s like Turley wants the DOJ to divulge its case to the public BEFORE issuing charges or BEFORE a trial. Surely as a “law professor” he knows that’s not how it works.
Turley is being deliberately disingenuous or just being stupid trying to feed the rage of the gullible on this blog.
Svelaz: you previously have not used the word ‘stupid’ when describing Professor Turley. “Turley is just being stupid here.” We know what you meant to say, we’re not stupid, but next time, find another word.
Richard,
Using the word “stupid” accurately describes Turley’s poor attempt at making an argument that any first year law student knows is not an argument. It’s pretty stupid for a law professor of Turley’s stature to even try to make such an argument.
He’s being laughed at by real lawyers.
Not so fast, Svelaz! There are plenty of lawyers who read Professor Turley’s blog who are giving him high praise. 👏👏👏
Those aren’t lawyers. Those are Turley’s gullible fans.
Garland, DOJ, FBI, DHS and etc. have LOST al creditability and support from the public, the only ones cheering them on are Hilray, Biden, Obama, Left Wing Social Justice Warriors, Soros crowd and etc. They have ZERO ZERO respect and creitability and will never get it back. Going after Trump, Parents, and anyone who disagrees with them. There is a need, if Republicans take control, take their funds away, impeach, require wholesale changes.
The FBI sought a biased judge who had recused himself on 22 June 2022 from sitting on a case (Trump vs Hillary) due to his bias against the 45th President. If they wanted this squeaky clean they should have chosen someone else.
They will lose the court case as the defense will bring up case precedent of other Presidents who have fought FOIAs concerning their records. Also, the wide field of the search, going after everything is a giveaway. Why not bring a big commercial vacuum?
Have they disclosed the fact that much of the material had already been reviewed by the legal team and anything of concern was locked up and protected by the Secret Service.
This is a political hit job and outright harassment as well as a fishing expedition. Time will reveal more details but it probably has something more to do with a propaganda objective this close to an election.
The train has derailed.
The FBI did not have any control over which magistrate judge they were assigned to.
“They will lose the court case”
What case? So far, Trump’s lawyers haven’t filed any challenges.
“Have they disclosed the fact that much of the material had already been reviewed by the legal team and anything of concern was locked up and protected by the Secret Service.”
Are you aware that classified material requires greater protection? There’s actually a law that regulates this:
https://www.archives.gov/isoo/policy-documents/isoo-implementing-directive.html
See “Sec. 2001.43 Storage.”
This is not intended to disparage the Professor, but we have seen story after story on this blog about these ‘fine people’ that have turned out to be wet noodles when the wind blows. Over and over. Garland, Barr, even Biden and his ‘most moving inauguration speech’ we are supposed to have heard. Is it finally a possibility after nearly 7 years of *out in the open, captured on camera, made a record of in court and then promptly ignored* thuggery and ‘coincidental’ value shifts that happen to align perfectly with the Liberal narrative, this could have something to do with the party in question? Our modern dems are not Democrats. Even Manchin was just negotiating for goodies, not acting out of high ideals.
It’s true opinions can change, but not with the faster than instantaneous, light speed rapidity we see again and again. Give me a break.
You could demand that Trump
Explain himself – why he had classified documents at Mar-a-Lago, the nature of those documents, what he planned to do with them, why he did not return them when subpoenaed, why he lied about what he had when subpoenaed.
It is not Merrick Garland that has anything to answer for at this point.
Garland is in a tough spot. He can’t fail to please President Biden (think West Wing Political Operatives).
Those Supreme Court Justices do not appear to be pictures of health…He still has a shot.
“Instead, the government scooped up everything, from passports to attorney-client material.”
Par for the course, considering the NSA’s actions. Practically SOP for snoops in the government to scoop up everything, nevermind the 4th Amendment.
“He may be justified in ordering it, but he cannot simply dismiss critics as unhinged extremists.”
No justification. It is a clear abuse of power. And yes, he can simply dismiss critics. The media carry his water and they spray the masses with pure garbage media/government disinformation daily.
It wasn’t a ‘raid,’ it was a standard everyday justified FBI ‘search’ because: Trump bad! Trump very bad again! Bad Trump! Good Merrick Garland! Bad bad Trump. The brainwashing continues.
Rinse and repeat. None of these corrupt liars go to prison. None of these corrupt criminals even lose their government pensions. They just go on cable TV as expert analysts. They get hired to propagandize our kids at elite colleges. It’s disgusting.
The passports were quickly returned, and there’s no reason to assume that they “scooped up … attorney-client material.”
Don’t assume Turley’s hyperbole — “scooped up everything” — is true.
Mr. Turley,
Outstanding evaluation of this debacle.
Steve
P.S. Hold your breath, here come the trolls to attack Mr. Turley for stating the truth.
That was my comment, I don’t know why it posted without my information.
The problem arose for Diogenes yesterday.
Politicians are now performance artist, they perform for their audience. They do not try to change minds.
AG Garland is not a performance artist. He follows the rules, and expect ts everyone at the DOJ to do the same.
Sorry, but the horse has left the barn and it’s not coming back. Garland has lost all credibility and nothing he does at this point can restore it.
This DOJ action is the result of Garland being forced to take on radical underlings as a Deputy AG. This is the same method that was used under the empty suit Mueller when Andrew Weisman was in control. Garland’s deputy AG was a Weisman protégé and is now the force behind a passive and weak Garland.
I wonder at the double standard shown by lefties.
For many years, when the FBI/DOJ was aggressive against lefty icons, lefties squealed like pigs.
Remember the howls when uniformed DOJ troops did snatch raids in Portland?
But TDS has warped their morals to the point that lefties are cheering an apparent DOJ overreach.
But don’t worry, lefties will rediscover outrage when a Republican DOJ arrests the Biden crime family.
Hullbobby, this sounds right, and the analogy to Mueller is a good one. Garland seems out of it when he speaks, in the same way Mueller did when he testified. Garland will never stand up to the radicals now controlling the DOJ or top staff in the WH. Look at the rapid turnaround when he ordered the FBI to track parents critical of School Boards.
Garland said that this search was necessary because no alternative means were possible and that the warrant was narrowly drawn. This only makes sense if the objective was to take everything back, since that is what the warrant called for. It’s not limited to classified documents or documents relevant to the national defence, but covers everything dating from the Trump presidency.
It will be interesting to see what will happen if, as promised, Trump challenges the warrant under the 4th Amendment.