Justice Department Calls Trump’s Bluff
This is as close as we get to Garland saying "Eff around, find out!"
![[Merick Garland]](https://otb.cachefly.net/wp-content/uploads/2021/02/merick-garland-super-prosecutor-1024x683.jpg)
This afternoon Attorney General Merrick Garland held an unexpected press conference to address the search of former President Trump’s Mar A Largo property on Monday. Holding the conference broke with the Department of Justice’s practice of not commenting on an unfolding investigation. In his remarks, Garland noted that the reason for the departure was the “substantial” public interest in the matter. He also bluntly stated that the Department would not “stand by silently when their integrity is unfairly attacked.”
Here are the core highlights from the remarks:
- As previously suggested, Carland confirmed that he had personally authorized the warrant to search Mar A Lago.
- That the FBI attempted to avoid turning this into a high profile event. It was the former President’s own actions on social media that made the search public.
- More importantly, Garland announced that the Justice Department had filed with the Southern District of Florida to release the warrant (but not the warrant application) that was issued for the search. Interestingly this petition explicitly allowed for Trump’s legal representatives to move to keep the warrant sealed.
In other news, the New York Times reported earlier today that an anonymous source shared that the Justice Department had attempted to negotiate the return of these documents with Trump’s lawyers for an unspecified period of time via subpoena prior to the decision to seek a warrant.
From my perspective, the Department of Justice has done a masterful job of boxing the Trump legal team into a corner. As previously noted, the Trump legal team could have released the warrant they were given on Monday but chose not to. Now, the only barrier to the release of said warrant will be the same legal team. This moves from the perception that the Government is hiding something to, if they choose to oppose this order, the Trump team will be the ones with something to hide.
If the warrant is released, it will be a short document containing both the types of materials that were being sought and the related alleged crimes that are being investigated. There will be no mention of whom is being accused of those crimes). The Justice Department has also said it approves of the list of the property receipt which will detail everything taken under the warrant.
Some people are erroneously reporting on social media (and perhaps elsewhere) that the far more substantive warrant application will also be released or made available to the Trump legal team. That is incorrect according to former Federal Prosecutor Renato Mariotti.
Also of note, the Biden Administration, ahead of the press conference commented that they were not consulted about the decision to address the nation. This signals the potential return of a healthy firewall between the Department of Justice and the Oval Office.
[Update 8/12 AM ET] Politico is reporting that last night President Trump issued the following statement approving the release of the warrant:
“Not only will I not oppose the release of documents related to the unAmerican, unwarranted, and unnecessary raid and break-in of my home in Palm Beach, Florida, Mar-a-Lago, I am going a step further by ENCOURAGING the immediate release of those documents”
The next step would be for the former president’s legal team to submit this request to the court. Alternatively, they can do nothing and let the request run its course without opposition. It is also not outside the realm of possibility that the Trump legal team will still oppose the release. Only time will tell.
Also under the “only time will tell” category is what exactly the warrant will look like and what, if anything, might be redacted at the time of release.
ps. Great headline Politico… clearly great minds think alike!
[Update 8/12 PM ET] Trump’s attorneys have filed that they do not object to the release of the warrant. Earlier today, Breitbart and the Wall Street Journal confirmed they had been provided a copy of the warrant from unknown sources. The reports link the warrant to an investigation around three offenses (note that this doesn’t indicate who would be charged with said offenses):
- 18 USC 2071 — Concealment, removal or mutilation of defense information
- 18 USC 793 — Gathering, transmitting or losing of defense information
- 18 USC 1519 — Destruction, alteration or falsification of records in Federal investigations
And, although the motion to unseal appears to give the Trump legal team until 8/25 to challenge, Kyle Cheney (Politico legal reporter) is reporting that the Judge has ordered the DOJ to confer with Trump’s legal team and get an answer by 3 p.m. (EDT) tomorrow.
Eff around and find out, indeed.
Ooh, shiny thing!
Perhaps just coincidence as to who was available at the office (LOL), but this just sent a tingle through my spidey sense:
“The motion to unseal was signed by U.S. Attorney Juan Gonzalez and Jay Bratt, chief of DOJ’s counterintelligence section.”
Counterintelligence, you say?
Hmm…
@Jen:
Can Trump appeal this?
@JohnSF:
Yes, I noticed that.
@CSK: Meaning, can he appeal the “make a decision by tomorrow” deadline? I have no idea. Can he object to the unsealing? Sure, but as noted in Matt’s post, he’s kind of boxed in.
Trump’s response on Truth Social was apparently some next-level whataboutism, in that he is trying to deflect attention to the documents properly vetted by the National Archives and sent to Chicago for Obama’s Presidential Library. (???Seriously???)
@Jen:
I was wondering if he could appeal the “make a decision by tomorrow.”
@Jen:
“I wish to object!”
“To what?”
“To EVERYTHING! Come, ye MAGAI, hear my
whineroar!”@CSK: He can say “I object to the unsealing” by 3 pm tomorrow and then has 2 weeks to explain why.
They say justice grinds slowly but finely.
Has to be tough for his legal team. They don’t get to see the application, and have to wonder how much of the truth Trump has told them.
@Argon: Slowly yes. Finely? Not always. But relentlessly every time. I’ve had some minor scraps with the law, and they just don’t let go until they’ve gotten their pound of flesh. My ex screwed up and pissed off a prosecutor badly and he didn’t let go until he got 6 lbs of her flesh. (I can’t be sure but I think it was her husband pulling some strings in the good old local boy network to got her off of an egregious probation violation. That DA just would not let go after that.)
@Michael Cain: They could always quit.
@Michael Cain: I don’t see it to be particularly difficult to assume that FG never tells the truth and that putting him on the stand to testify amounts to suborning perjury. The challenge is saying that in a way that disguises what you really mean.
Thank you Matt for the clear concise analysis.
So Garland not only has something on Trump, he actually has a pair and is willing to show it.
Good.
And I love that Garland is showing that “two-dimensional chess” (or possibly checkers) is all it takes to say “check”. It isn’t “check mate”, but the “king” is certainly going to be on the defensive now, and… his bishops are incompetent and he has no knights. He’s only left with pawns.
@Mu Yixiao:
Mary Trump:
Emphasis, mine.
I think that it was a very savy move for Garland to come out as he did, and they’ve put the ball in Trumps court. Now he’s the one who either has to put up or shut up. I’m very interested to see where this goes. My bet is with Garland
@Michael Cain:
I suspect his attorneys fall into three basic categories:
1. Right wing fanatics that will jump on their swords for him;
2. Straight up morons that will accidentally walk into swords for him; and
3. junior associates who spend most of their time with their buttholes so clenched they functionally no longer exist.
Personally, I hope the 3rd group gets paid. The rest can choke on it.
I hope Bill Barr’s balls shrunk when he watched Garland’s press conference.
No idea who WaPo’s sources are, but if accurate, it doesn’t appear that we’re just talking about trinkets & notes from Kim Jong Un.
FBI searched Trump’s home to look for nuclear documents and other items, sources say
@Jen:
IF he had nuclear docs, even if he just did it cause “wow-ee, neato”, why isn’t he on his way to jail?
@Jax:
That sycophant doesn’t have any to shrink. He traded them away with his soul for a life of being a flunkie.
@Jen:
If they were about nuclear weapons, then everything makes sense.
Tonight Donald Trump is scared. Merrick Garland got the entire GOP to demand the warrant. All except for one person: Trump.
I don’t know if this was Garland playing several moves ahead, or just smart countermove, but tonight the entire GOP is on record demanding what Donald Trump does not want to show them.
Sweet.
I’m seeing a lot of stuff since the “raid” to the effect that this will push Trump to announce he’s running. Because it’s energized his base, because supporters want him to strike back, because his fundraising is up, because other GOPs are urging him to run, whatever. GOP pundits are going so far as to say the FBI handed Trump the election. A month ago there was a lot of speculation he’d announce a run hoping it would shield him from DOJ. But now that he’s desperate for any protection he can get, everybody seems to be saying he’ll run, but attributing it to anything but the obvious.
Of course the idea that DOJ might back off if Trump announced seemed to take a hit from Garland this afternoon.
It is being reported by Politico, and other sites I would presume, that Trump says release the warrant. Friday morning should be interesting.
@inhumans99: I mean, he could’ve done it his own damn self on Monday.
Friday news dump, indeed. Glad I’m going out of town for the weekend.
@Jen: Skimming Foxnews.com, they don’t mention anything about nuclear weapons documents. The guy who attacked the FBI field office has also mysteriously vanished from the headlines there.
@Beth:
Don’t you know Trump has “a plenary right” to sell US nuclear codes to Putin? Duh.
@Michael Reynolds:
I wonders: did a few of those Republicans know, or guess, the play.
I’m pretty sure both McConnell and DeSantis would love to do Trump in, so long as they could be sure their fingerprints weren’t found on the weapon.
Smart enough to assassinate by being ultraMAGA?
Trump was bleating on Truth Social shortly after midnight, demanding (who?) “Release the documents now!”
Which, of course, he is in possession of and could release on his own at any time.
Also, Truth Social’s 24-hour clock appears to be borked, as it’s showing the timestamp as 24:43, which…is not a thing.
One thing I’ll note here that I don’t see much mentioned is the vague, anonymously-sourced reporting about Trump possibly having documents related to nuclear weapons.
I’ve maintained all along that trying to get Trump for mishandling classified information from his administration is a fantasy because of the plenary power the Executive has when it comes to classified info along with long-standing norms of Executive privilege.
But nuclear and nuclear weapons related secrets are a different matter because some of those are classified by statute and not by Executive Order. If such material and documents were, in fact, in Trump’s possession, then he is far more vulnerable to potential prosecution for mishandling classified material.
@Andy:
FWIW, because of the vague sourcing and the even broader potential definition of “nuclear documents” I don’t think its worth commenting on until there is more information (especially by a non-expert like myself).
@Jen:
As noted in the update, the former President can say whatever he wants on social media and other platforms. However, for the purposes of releasing the warrant, statements made outside the court will have little immediate bearing on the legal proceding.
@Andy:
I’m no lawyer, but I would think one loses Executive privilege the moment you are no longer president.
I think we are going to see the biggest rabbit hole for Trump defenders yet as they try to pretend that a former President still has some sort of magical powers vested in him.
@Andy:
True but my gut tells me prosecution wasn’t and still isn’t the DOJ’s plan on this matter, the goal was just to get the docs back. There’s a significant risk is he would make copies if he knew he might be about to lose them so it had to be a surprise search warrant.
The need for prosecution exists in the matter of using the power of the office to reverse an election, but not in this. The office can’t be child-proofed.
I’m glad the docs were retrieved and you may, indeed, be correct, especially if the powers that be do not think a prosecution – for whatever – would be successful.
I will repeat Solon’s advice: count no one happy until Benito does the perp walk.
Well, I got my wish for more information and transparency. It answers some important questions but raises many others. It was also good to see Garland stake his reputation on the process, which gives some confidence that the DoJ is handling everything by the book. Because if mistakes were made, Garland would be the first to pay for them.
I’m glad all the documents are back under proper government control, but I have to wonder what took so long.
As much as he deserves it, I continue to be skeptical that a successful prosecution can be brought against Trump for violations of mishandling classified material for reasons I discussed in recent posts. At the very least, this is a gray area and something that’s never even been attempted when it comes to a former President. Those who are chomping at the bit to get Trump convicted of something probably ought to manage their expectations.
Considering it will obviously take a significant amount of time for federal authorities to assess everything that was collected, and judging from the early reactions online, I can tell we’re about to see a repeat of a typical news cycle from the Trump years with lots of selective leaks from competing anonymous sources followed by speculative one-sided “analysis” from the usual suspects.
Since I don’t have any desire to follow or participate in any of that, so I will probably bow out of conversations on this topic and ignore the “takes” until there is more actual good information.
@Andy:
With regards to why this took so long, my understanding is it took some time for the National Archives to realize that the documents were not transferred (possibly late 2021) and they’ve been attempting to recover them ever since through less dramatic means.
As for why it took so long for the archives, some people have suggested that was a result of the Trump Administration’s “non-standard” record keeping.
@Andy:
Yes. Wait and see is the best approach.
—
I only am here to comment on the Breitbart link. People who bitch and moan about MSM bias sure seem to love their news reports full of bias. The last update claimed it was “all irrelevant,” because in a Truth Social post, Trump claimed he declassified the documents. News report, my ass.
@Andy: As for why it took so long, this is all unprecedented, and as such they wanted to make sure they had ALL their ducks in a row, because if even one is a half step ahead of the others you know RW Media will jump all over it. They’ll jump all over something anyway just like they did with the election, but a score of 66-0 kind of settled that one for the sane among us. Pretty sure Garland intends to run up the score even more on this one.
The case against Trump seems pretty clear. Documents are either classified or they are not. You either have the documents or you don’t. Refusing to hand over what the government says you must hand over is not a case of mishandling. You have stopped mishandling something the moment the government asks for it back.
That Trump is an idiot who doesn’t think the law applies to him is a practical defense. Same goes with his reflexive defenders. But it doesn’t matter legally. Legally, he seems to have zero legs to stand on.
@Modulo Myself:
Correct. The privilege attaches to the office, not the occupant.
@Matt Bernius:
This is my read as well.
In following this story, the timeline appears to be something like:
– Archives learn that documents were removed
– They ask repeatedly for the documents, really pushing hard in January
– Trump finally provides 15 boxes in January
– Archives start sorting through the materials received, find out that there’s classified information there, around Feb.
– Archives turn this info over to DOJ
– DOJ starts long slog of proper procedure, asking Trump if maybe there’s anything else that should be returned
– In June, DOJ pays a visit/subpoena issued
– At some point, informant lets someone know that there are still documents in FLA that shouldn’t be there
– Painstaking work of issuing search warrant
From public reporting on this, it doesn’t sound like anyone was really aware of what Trump had removed (how much/what it was) until this year. Which is a bit frightening, but it does sound like they moved as quickly as possible when things reached a hair-on-fire realization of what may be in there.
@HarvardLaw92:
Even by Trump standards, the defenses seem incredibly dumb. If Trump did declassify the documents could have been classified again after he left office. It’s not rocket science here. Clearly, as a normal citizen he had no business having whatever the hell he had in the cheapest safe he could find with the combo probably on a post-it on the door.
Various media outlets reporting that Trump is being investigated as part of an Espionage Act enquiry.
IANAL, but that sounds a bit more dramatic than the Late Library Books Act.
Why does a man motivated by greed and narcissism, a man with deep and dirty ties to the Kremlin and to MBS, hold onto secret documents even after they’ve been subpoenaed? Anyone? What is the innocent explanation? Trump’s people want us to fall down @Andy’s rabbit hole of classified or not. The question is why? For what purpose did Trump hold onto secret documents? Do not tell me it was research.
Here’s my admittedly fiction writer guess: the FBI’s known for a long time what Trump had, they were waiting to see one of his documents shopped.
I’m going to repeat some personal speculations and thoughts re. possible explanations (doesn’t mean I’m sure eg Jen or Michael Reynolds or multiple others are mistaken; just some alternative scenarios.)
Trump, on the way out, grabs a whole metric sh!tload of documents (c. 15 boxes, remember).
What Trump was really interested in, may not necessarily be what the raid was really interested in.
Was Trump informed specifically, previously “you have this, please give it back”?
Alternative could be, he was told that he had a whole bunch of stuff that he needed to return.
That somebody in DC had cause to look for a very sensitive document, and realise that it was missing, and likely to be in Trumps trove?
That people get really alarmed about who else is sniffing around Mar-a-Lago?
(If I was “C” I’d be very tempted to sneak someone in. You never know what the “Cousins” might not be telling us, after all, till you look. 🙂 )
Possibility: sensitivity of document(s) might(?) make a court case be considered inappropriate?
Warrant also mentions “obstruction”, which might be easier than espionage to make stick?
Also, does Espionage Act require that disclosed material be classified?
Some commentators seem to say not.
If so, the “declassification” argument may be moot.
What is the yardstick here: intent, or harm?
Also IIRC there are some classified items that are NOT amenable to Presidential determination alone; they are restricted by statute.
Nuclear things, in particular.
It would be fun if the documents were the blueprint of a nuclear weapon, and they were taken/kept at MAL because they were going to be the quo for the billions of quid given to Jared by the Saudis.
Many a best-selling fiction book has had a less explosive plot!
@Gavin:
Nah.
Saudi’s already have nuclear weapons.
They are just held for them by Pakistan.
(Though OTOH there must be some in Riyadh who worry about Islamabad’s relations with China, and China’s with Iran…Maybe all that money went for little return? Oh, what webs they weave!)
But I’d still bet, even if they can’t lay hands on the weapons themselves (and I suspect they could) they pretty certainly have all the data and design specs on file in Riyadh.
@Michael Reynolds:
Well, we don’t know why and hopefully, the investigation will discover that. At this point, any theory is entirely speculation.
I do find it odd the documents have sat in the same boxes since they were moved there 18 months ago, seemingly unorganized and untouched. One would think that if they had dirt on Trump or were part of some conspiracy, they would have “disappeared” long ago.
@Andy:
My personal speculation:
Perhaps even Trump didn’t know what he had.
He’d just snaffled whatever was to hand on the way out, plus some items he’d put aside to look
“at some point” over his four years in office.
Then he has them at Mar-a-Lago, but is too damn lazy and undisciplined to actually go through them.
He may not even realise what he’s got.
Perhaps what interest him in the stuff is not what the feds are most concerned about.
(i.e. possible stuff relating to grifting deals or his precious properties, as opposed to genuine NatSec stuff, or Jan6 activity)
But also doesn’t want to hand over the “precious things” for someone else to review for him.
So they just sit in boxes in his office space, with Trump occasionally taking a peek, and maybe (stupidly) waving something in front of a visitor to show off.
He’s asked to hand some stuff back, and immediately goes off on a fit of paranoia (“they must want it to hurt me!”) and petulance (“Demanding, of me, the rightful kayfabe presidente? I won’t do what they tell me to! I won’t! Why can’t I keep it? I’m ME!”)
He is the Toddler-in-Chief, after all.
Eventually, DoJ and others run out of patience, or else something triggers a greater urgency, and they just go get the stuff back.
Now they have “it”, might be judged best not to point out what “it” actually was.
Which, along with political and evidential issues, would make a trial problematic.
@Andy:
“ I do find it odd the documents have sat in the same boxes since they were moved there 18 months ago, seemingly unorganized and untouched.”
Is that statement not speculative theory at this point in time?
@Michael Reynolds:
Because the more you can keep the Rogan-Greenwald set distracted with irrelevant shiny objects (Carter Page FISA warrants, Steele Dossier moot points, the former guy’s nonexistent unlimited plenary declassification rights) the fewer people will recognize that Trump is a congenital liar and a grave national security threat that cannot be trusted — from helping Russia wage a propaganda war on the US electorate to wreaking US security by blackmailing Ukraine.
Not that the FBI isn’t shady af, but imagine having spent the week thinking Donald and Eric Trump are more trustworthy than Merrick Garland’s DOJ. Pfft!
@JohnSF:
The plenary rights of former presidents hardest hit.
@DK:
I was thinking in particular of the MacMahon Act of 1946.
I seem to recall passing mention of others, but don’t take my word for that; could be mistaken.
Came across MacMahon Act in the context of US/UK post-war relations.
The British government was privately outraged at being told by the Truman administration, that due to the Act, the President was compelled by law to stop all sharing of nuclear information with Great Britain, despite the prior promises of both Roosevelt and Truman.
(This technically included the even the “Codeword: Tube Alloys” information that the UK had itself supplied to the US, since 1940)
It was this that (re)started the UK national atomic weapons programme in 1947.
In the words of Foreign Minister Ernie Bevin:
@Scott O:
Yeah, it’s partly speculative. Some of the reporting indicates the boxes are the same ones taken from the WH, but that could just be reporters not being careful with their wording. And there are several reports on the contents from the raid, which say that boxes contained a mash of stuff including classified documents but also stuff like dinner menus, various memorabilia, and other random stuff.
@Andy:
The interesting question might be why, in the initial subpoena, Trump returned a reported “15 boxes” but retained the ones picked up this week and ignored subsequent requests for them. From that it’s a fair deduction it wasn’t just random stuff. But one never knows with Trump, who is both lazy and reflexively obstinate.
@JohnSF:
Huh. That’s fascinating.
See also the Atomic Energy Acts of 1946 and 1954, for statutory limitations on the president’s declassification rights.
We really need to get rid of the President-As-Sun-King Louis XIV crap and shift the center of gravity back to Congress, where it belongs.
@dazedandconfused:
Yeah, that’s one of the big things that need an answer. Whatever the scenario, not a lot makes logical sense.
@Andy: I had thought maybe he had recklessly re-boxed things he considered personal into boxes marked top secret, perhaps, but then he wouldn’t have launched the BS about declassification and, having nothing to hide, would’ve negotiated an inspection of the retained items.
I suppose this was inevitable…
https://www.politico.com/news/2022/08/13/top-house-lawmakers-ask-intel-officials-to-review-national-security-damage-from-trump-document-handling-00051577
Congress calls for a damage assessment, a request the CIA can not refuse. We will get the gist of what he kept, but it will take several months I imagine.
@DK:
I can see where you are coming from, and have some sympathies for this POV on grounds of US constitutional history, and of democratic system legitimacy.
BUT…
Any such system makes the US a monumental PITA for other countries to deal with.
Compared to counties (e.g. UK) where the executives word is taken to bind.
Some may respond:
“Well, that’s other countries problem, they just have to learn to live with it.”
But it can blow back on the US: see the collapse of the League of Nations as an effective peacekeeping mechanism, due to Senate vs President Wilson fights, and a causal chain to WW2.
Oopsie.
Also the early onset insanity of the Republicans over “who lost China?” leading to refusal to recognise Communist govt. for fear of Congress erupting, leading to “one China” policy, leading to failure to establish formal Taiwanese independence during the window of opportunity.
Oopsie.
Problem is, Congress has a massive temptation to pander to “enthusiasts” among its membership, or among the electorate, primary and general, or the donors, or the media.