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.
Trump appointed the very same FBI Director that applied for the search warrant and the vast majority of federal judges were appointed by Republican presidents. There must be pretty solid probable cause evidence, for Republican officials to grant such a search.
All of these (mostly Republican) officials approved this search warrant under penalty of perjury and contempt (risking prison time for misrepresenting a warrant application). They also risked political repercussions of going against this cult-like leader from their own party.
If there is a Deep State – it was created by Republicans. The FBI Director that applied for the warrant was appointed by Trump. There is no judge that would approve such a high level warrant without evidence.
+100
The danger is, you often don’t realize how close you are to falling into the Abyss until too late. Watching the endless January 6 hearings and the Mar-a-Lago search, it is easy to forget just how close we came to the impeachment or prosecution of a president based on false information. And then? So much for the rule of law.
Remember what was at stake. The president of the United States was accused of being a Russian agent. Then there was a backup plan, to indict Trump for obstruction of justice in a case that could only have exonerated him, based as it was on false information. It is all worth revisiting now, as the January 6 committee and the FBI contemplate empty but politically juicy criminal referrals.
“The fact pattern that John Durham is methodically establishing shows what James Comey and Andrew McCabe likely knew from day one, that the Steele dossier was politically-driven nonsense created at the behest of the Clinton campaign,” said Kevin Brock, the FBI’s former intelligence chief. “And yet they knowingly ran with its false information to obtain legal process against an American citizen. They defrauded not just a federal court, they defrauded the FBI and the American people.” The 2019 Horowitz report, a look into the FBI’s conduct, was led by the Justice Department Inspector General; it made clear the FBI knew the dossier was bunk and purposefully lied to the FISA court.
A prosecutor needs also to ensure that he can prove intent, that an act—perjury, for example—was committed with the intent to mislead and was not simply a mistake. That’s the difference between a mistake, a misstatement and a lie: what it was intended to accomplish. The act is easy to prove, but the thought pattern, what was in someone’s head, the mental objective behind an action, much less so. Imagine those issues being debated in a divided America during, say, a presidential-election campaign? Was the Deep State ready to go that far?
That’s the Abyss.
https://www.theamericanconservative.com/mar-a-lago-and-the-abyss/
“[The warant] 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.” (JT)
In other words, it is a “General Warrant” — which is unConstitutional and a tool of tyrants.
Trump is free to make that argument in court, but so far, he hasn’t..
The fact that they only took ~1/3 of the numbered (A-1 through A-73) boxes undermines your claim.
“numbered (A-1 through A-73) boxes” and what is the source that reports that the boxes were numbered. if they were numbered then NARA and GSA knew what were in the boxes and should not have let them be shipped to Mar-a-lago
“what is the source that reports that the boxes were numbered”
The manifest was unsealed last week and lists numbered boxes.
” if they were numbered then NARA and GSA knew”
What is the source that reports they knew what was in all numbered boxes?
“The fact that they only took ~1/3 of the numbered (A-1 through A-73) boxes undermines your claim.”
The fact that you blur the distinction between the warrant and what they (allegedly) took, proves (yet again) that you use deflection to deceive. And that you’re an apologist.
You make no argument that the things they left would have been covered by the warrant. Do you have one?
“You make no argument . . .”
Nice rabbit hole.
The only way I’d trust him is to find a letter naming names of the CCP operatives in the FBI and DOJ and his lifeless body in a cheap motel next to a spent revolver and cheap bottle of booze – preferable Old Crow for its ironic tenor.
Article VI of the U.S. Constitution also makes “treaties” the “supreme law of the land” in the United States. Garland therefore should create a Grand Jury to investigate why Ronald Reagan’s Torture Treaty was violated by George W. Bush’s government attorneys.
Ronald Reagan’s Treaty was a legally binding treaty that was also codified into federal law. Presidents did not have the authority to violate this treaty.
Both Democrats Trump supporters should support this Law & Order action.
Why this matters? Trump merely exploited and built upon the legal “foundation” that the Bush Administration created. You can’t prosecute Trump without also holding the Bush lawyers accountable.
Nixon and Bush invented the “Unitary Executive Theory” – which essentially means voters elect a dictator every 4 years. Trump simply adopted that tradition that Bush created.
The Bush lawyers – America’s best lawyers – seemed to intentionally perform legal malpractice. These lawyers adopted torture techniques from the Spanish Inquisition (recognized for centuries as torture) and simply renamed it as non-torture. These lawyers were well aware of Ronald Reagan’s treaty (also federal law) designed to restrain presidents. Reagan’s treaty also outlawed cruel treatment in addition to torture.
Since many Trump supporters disliked the Bush Administration, Garland could do this today. There is a treasure trove of hard evidence. Garland needs to do this anyway if he is going to hold Trump accountable. Bush and Trump are linked together in their “Unitary Executive Theory” law breaking.
“I will not stand by silently when their integrity is unfairly attacked.” -AG Garland
It’s not their (rand and file agents) integrity being attacked, it’s yours; and justifiably.
EDIT: “rank and file”
I was a moderate swing voter who has voted for both Democrats and Republicans in the past. No longer. This crusade that has us descending into the worst example of the ends justifying the means has set me against any Democrat for the rest of my life. I dislike Trump, but these actions will see me vote for him in 2024 and never vote for a single Democrat ever again. I am not alone in this feeling of disliking fanatics that can justify anything in the name “protecting democracy” while destroying it.
I do hope Professor Turley is not in grave danger for posting critiques of the Attorney General considering the militant gestapo ways of his people. The FBI is not trustworthy.
Can’t wait until 2024 comes around and Schedule F is revised and 3/4 of all Federal Employees find themselves in the unemployment lines.
“the government scooped up … attorney-client material.”
We don’t know yet, but maybe. Here’s one discussion of why that may be:
“… Among the crimes under investigation is the destruction, alteration, or concealment of materials to obstruct an or multiple investigations. I’ve previously pointed to a number of instances where Trump did that with the assistance of lawyers (I’ve taken out a paragraph of Trump Organization examples, because only government documents were permitted to be seized on the search warrant):
• One thing Trump is likely to have withheld is the Perfect Transcript between him and Volodymyr Zelenskyy, which is something Congress was entitled to get during impeachment. That transcript was hidden from Congress by White House lawyer John Eisenberg, among other lawyers, thereby according the transcript a weak privilege claim, but one easily overcome by the obstructive nature of the choice to withhold it.
• While one draft of Trump’s termination letter to Jim Comey was ultimately turned over to Mueller (after reports that the only extant copy was one preserved by DOJ lawyers), the Mueller Report narrative surrounding it makes it clear that Trump and Stephen Miller worked over several drafts before the one shared with others. Those earlier drafts were likely not turned over, in part because White House Counsel lawyers advised Trump that these drafts should “[n]ot [see the] light of day.” Again, that’s legal advice, but also proof of documents that were illegally withheld from the Mueller investigation.
• I don’t want to even imagine what advice from Rudy Giuliani that Trump has withheld from various investigations, particularly pertaining to January 6. Most of that would be (shitty) legal advice. If it was also withheld from proper investigations, though, it’d also be proof of obstruction under 18 USC 1519.
Given the Fox News report of ongoing filter review, it’s likely those materials, at least, will be reviewed a second time to make sure they’re proof of obstruction before being shared with investigators. …”
https://www.emptywheel.net/2022/08/21/next-steps-in-the-trump-stolen-documents-investigation/
The President can do what ever he wants with his work material. Legislation does no cancel Executive power.
Trump is welcome to test your conjecture in court.
That is from a Judges ruling. It is existing case law
But I’ll play. When does legislation cancel the power of another branch of govt?
No, that was your personal claim, not a quote from a judge’s ruling.
Glad to know that you think Nixon should have been able to hide or destroy the tapes.
Hillary wasn’t even president and SHE did that and more.
When does legislation overule the power of another branch of government.?
SCOTUS addressed the constitutionality of the PRA in Nixon v. Administrator of General Services.
Also, Trump is not President and is not part of any branch of government.
The PRA that went into effect in 1981? That’s a neat trick
“Under the statutory scheme established by the PRA, the decision to segregate personal materials from Presidential records is made by the President, during the President’s term and in his sole discretion,” Jackson wrote in her March 2012 decision, which was never appealed.
“Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office, it would be difficult for this Court to conclude that Congress intended that he would have less authority to do what he pleases with what he considers to be his personal records,” she added.
Her ruling doesn’t apply, both because a DC district court ruling has zero precedential value in the Southern District of Florida and because the facts of the case aren’t comparable.
Ignore the SCOTUS precedent all you want, and continue to display your willful ignorance. That’s your wont.
“Ignore the SCOTUS precedent all you want, and continue to display your willful ignorance.”
Upside down or inside out your argument is a loser Baby! LoL;)
Suck the Lose, it’s what you Own!
TS/SCI documents are no one’s “work material”. They are the property of the United States Government. Even members of Congress are required to go to a SCIF to view the papers. No copies allowed, no cell phones, no note pads or any form of recording device is allowed. Just another diversionary lie, but it does prove that Trump KNEW he was taking TS/SCI documents and made up another lie as a cover. It also proves that gullibles like you believe his lies.
The entire left and media are in an uproar because there is criticism of the FBI, you know, armed and trained men and women that are tops in their field of POLICE WORK, and yet they had no issue with actual threats and actual marches and protests at the HOMES of the Justices, you know, studious, book smart men and women that are in the intellectual realm of society.
So complaints against ARMED and TRAINED men and women…frightening, threats, actual threats, marches, protests and screaming at JUDICIAL OFFICERS OF THE COURT, nothing to see here.
This is life in Doublestandardstan (TM).
#LiveNotByLies, Troll
Here in Canada, Garland looks like a castrated weasel. Biden / Garland / DOJ have literally lost the Western world and America – Canadian people. Those who support Trudeau-Biden are the hard Left morally bankrupt atheists. These subscribe to anything goes dogmas like defund police, imprisoning Canadians on a whim, closing our bank accounts on a whim, setting America’s cities on fire to loot, pillage and encourage violent crime, groom young children to have sex changes, call parents terrorists, and place a leftist on Supreme Court who can not define “woman” because she is not a “biologist”. Canadians and Americans are fed up with their lies.
Turley is right. Both Canadians and Americans now live in a totalitarian state where Biden pays with taxpayer monies half-million dollars to erect a fence around his summer vacation home, while leaving the US Border wide open unprotected.
https://nypost.com/2022/08/21/the-lefts-mask-slips-on-brazen-trump-bias/
The left’s mask slips on brazen Trump bias
By Miranda Devine
Sam Harris deserves our gratitude. With dazzling honesty, the liberal atheist public intellectual from LA has said out loud what we all knew but which his ilk have blurred for the past two years: Once you decide Donald Trump is the second coming of Adolf Hitler, then anything is legitimate to stop him — and, yes, everything illegitimate was done to stop him in 2020, and it was “warranted.”
The propaganda media of the left amplifies and twists this attitude in hateful ways. Watch MSNBC for a day with its increasingly extreme defamations of Trump and his supporters, and you can’t help but recall the radio station in Rwanda that blared out regular denunciations of the minority Tutsi as “cockroaches” in the prelude to the 1994 genocide. History tells us where dehumanization always ends.
On average, I doubt that atheists are any more “morally bankrupt” than theists. Plenty of religious people act immorally. Same for the left-right split: there are immoral people in both groups, and I doubt that those on the left are any less moral on average than those on the right.
“Castrate weasel” — nice one! And good to hear an opinion about how the America of now looks to someone from outside the country.
Excellent analogy- NOT!
Let’s face facts our government is corrupt. If we the people don’t throw the anchor out soon, you won’t be able to express yourself on this blog without a visit from some thug from the government.
How did someone, from Garland to someone at the 7th floor of the FBI did not think this through?
Did they not think this just might appear as a bit heavy handed? In light of the June subpoena?
They should of made every effort to be transparent, done by the book, well documented to reassure the public this was not political.
If anything, Garland appears to being pushed around by non-elected/appointed bureaucrats with a bad case of TDS.
Are they really surprised by the poll numbers?
I would hope more FBI whistleblowers come forward to report of the corruption of the senior leadership of the FBI.
“How did someone, from Garland to someone at the 7th floor of the FBI did not think this through?”
Because their “thought” process is this: Can we get away with it?
Upstate: “How did someone, from Garland to someone at the 7th floor of the FBI did not think this through?”
+++
They did think it through but they are used to putting on a propaganda show for CNN and Twitter.
Well, it would be ideal for more FBI whistleblowers to come forward, but up to now, the treatment received by supposedly protected whistleblowers has not proven exemplary…
there are adozen so far – how many do you need ?
This is all about the DC field office – that may be half the agents.
Trump’s attorneys and support staff tried to keep him on the right side of the law and the right side of his loyalty oath (Oath of Office ). The problem is Trump seems to only employee “Yes Men and Women”. Maybe that is a key reform, more checks & balances on presidents.
The Framers of the Constitution listed presidents second under Article II to make clear presidents are not kings or dictators. Congress (which represents voters) was intentionally listed First under Article I.
The U.S. Constitution was created primarily to correct the weaknesses of the Articles of Confederation – it was never designed to elect lawless dictators.
It seems it would be constitutional for Congress to create greater checks & balances on lawless presidents to keep them loyal to their Oath of Office employment contract. Maybe one reform would be for presidents to retain competent legal advice and a public record so a lawless president could be criminally prosecuted.
suffering from TDS I see
“ What is clear is that Garland’s “trust us” mantra has done little to assuage concerns.”
Turley conveniently leaves out that the DOJ can’t “assuage” concerns when those “concerns” stem from the lying and games being played by Trump and his enablers. That includes Turley.
Garland has reason to divulge as little information as possible since there ARE ongoing criminal investigations on Trump and his associates. Turley continues to demonstrate that he’s a terrible lawyer, which makes him a perfect candidate for being hired by Trump. Real lawyers are making fun of Turley and his many mischaracterizations of the law that even first year law students know are wrong.
https://abovethelaw.com/2022/08/jonathan-turley-reminds-us-that-bill-clinton-took-a-couch-so-donald-trump-should-be-able-to-take-nuclear-codes/
Joe Patrice from above the law website?!
Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a litigator at both Cleary, Gottlieb, Steen & Hamilton and Lankler Siffert & Wohl, representing a variety of individuals, institutions, and foreign sovereigns in criminal and civil matters. Then Joe left private practice to concentrate on making snide remarks about other lawyers which is at least as fulfilling as motion practice.
It also means he’s much more knowledgeable than Turley which it seems he’s grown too comfortable in his tenured position to stay up to date with how the law works.
This fool’s empty head has grown so big it will soon explode.
In the 1987 Supreme Court case known as Department of the Navy v. Egan:
“The president is the Commander in Chief of the Army and Navy of the United States, according to Article II of the Constitution….His authority to classify and control access to information bearing on national security … flows primarily from this constitutional investment of power in the president, and exists quite apart from any explicit congressional grant.”
#TrumpPassports
The passports were returned before Trump even commented on them.
Trump never declassified any of these TS/SCI papers he stole while in office, and has no power to do so after he left. The little fairy tale about “declassification” is news to everyone interviewed from his administration, including John Bolton, Trump’s head of national security. No document proving declassification exists. If a document really IS declassified, it must be so marked and is available to anyone upon a FOIA request, but TS/SCI documents cannot be declassified if they pertain to national defense. Just another Trumpian lie.
Your reply has nothing to do with the comment of mine that you replied to. Did you reply to the wrong person?
Full of excuses today, aren’t you?
There’s a doctrine in law called “Responsible Corporate Official” (RCO) in which an official of a corporation can be held responsible for the wrongdoing of the company or a segment of the company if she had the ability to stop or prevent it. Why is there no equivalent doctrine to cover the inept FBI leaders who oversaw rogue agents become KGB spies (SAs Pitts & Hanssen), murderers (SA John Connolly in the Whitey Bulger case), felony perjurers (Clinesmith, et al. in Russiagate), etc.? Each of these rogue FBI special agents was subject of a congressional inquiry and each of those inquiries found serious lapses in FBI rules and security regulations. Yet, the directors were not held responsible. They could have stopped or prevented the corruption and did nothing. We need to hold government leaders like Wray and Garland to the same RCO standards we applied to the officials of Enron, Arthur Andersen, KPMG, Merck, and Purdue Pharma. Then and only then will they do what’s responsible and ethically correct.