By David Rohde
In his time as a federal prosecutor, Merrick Garland tried dozens of cases, from street crimes to the Oklahoma City bombing. During his more than twenty years on the bench as a federal judge, he issued hundreds of rulings, on issues ranging from national security to tax law. As Attorney General, he oversees the work of a hundred and sixteen thousand Justice Department staffers, including employees of the F.B.I. and several other federal law-enforcement agencies. But it is Garland’s decisions regarding the conduct of Donald Trump—in particular, decisions related to an F.B.I. raid on Mar-a-Lago, on Monday morning—that will define his legacy and either strengthen or erode public trust in the institution that he is trying to revive: the Justice Department.
The headlines, and Trump himself, have focussed on the role of F.B.I. agents in the search of his Florida home, but the raid, an unprecedented action against a former President, was almost certainly approved by Garland. The soft-spoken, sixty-nine-year-old Attorney General—famed for his deliberative style, caution, and reticence—now faces a significant political dilemma. If Garland does not indict Trump and reveal there is clear evidence that he committed a potential crime, he risks emboldening the lawlessness of the former President and his allies on the far right.
The raid may prove to have simply been an effort to recover classified documents that belong in secure government facilities. But Trump and his allies immediately cast the former President as the victim of a “deep state” plot—a false claim that Trump used throughout his Presidency to undermine public faith in investigations of his misconduct and, ultimately, in the outcome of the 2020 election—and declared it a central issue in the November midterm elections.
House Republicans quickly rallied around Trump. In a blunt threat, Minority Leader Kevin McCarthy castigated Garland, signalling that Republicans will investigate his conduct if they win control of the chamber. He accused the Attorney General, the country’s chief law-enforcement officer, of the “weaponization” of the Justice Department, telling him, in a tweet, “Preserve your documents and clear your calendar.” Ari Fleischer, George W. Bush’s former press secretary, attacked the Biden Administration as a whole. “This better be a slam dunk criminal case, otherwise the Biden Administration and DoJ have crossed a line of no return,” Fleischer tweeted. “If they got the goods, announce it. Otherwise this search on a former President’s home is a disgrace.”
Meanwhile, among Trump’s opponents, praise for the “Raid-a-Lago” and speculation that Trump would be indicted circulated widely online. Attention immediately focussed on a little-known federal law that makes it a crime when someone who has custody of government documents or records “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies or destroys” them. In January, officials from the National Archives removed from Mar-a-Lago fifteen boxes of records, some of them classified, that Trump had taken with him when he left the White House, in January of last year, two weeks after the storming of the Capitol. Some of those documents contain information that is considered to be “top secret,” the Washington Post reported. Federal prosecutors then began a grand-jury investigation and interviewed former White House staffers about Trump’s actions, and a small group of agents visited Mar-a-Lago to look for documents this spring, the Times reported. Trump, in a statement issued after the raid, on Monday, claimed that “after working and cooperating with the relevant Government agencies, this unannounced raid on my home was not necessary or appropriate.” A federal judge, nonetheless, had ruled that investigators had probable cause that a crime had been committed, and issued a search warrant.
An individual with knowledge of the probe said evidence that the former President had knowingly mishandled classified documents, by removing them from the White House, is strong. The person added that the evidence against Trump is more clear-cut than the evidence had been against Hillary Clinton with regard to her alleged mishandling of her e-mail when she was Secretary of State—something that Trump relentlessly attacked her for during the 2016 Presidential campaign. Clinton was never criminally charged. But prosecutors have brought charges for improperly removing or storing classified information against former government officials, including President Bill Clinton’s national-security adviser Sandy Berger. In 2007, after Donald Keyser, a former State Department official, admitted to storing several thousand classified documents in his basement, he was sentenced to a year in prison and three years of supervision.
David Laufman, a former D.O.J. prosecutor and senior official who has been critical of Trump, defended the search of Mar-a-Lago. “Having conducted and overseen multiple criminal investigations involving the mishandling of classified information, there is nothing unusual about the government executing a search warrant to recover classified material from a location where it is not legally authorized to be,” he said. “The only thing unusual in this case is that the classified material apparently was under the possession and control of a former President of the United States who fancies himself above the law.”
Trump, of course, wants to be President again. Legal scholars say past Supreme Court rulings suggest that the only requirements to run for the Presidency are the ones specifically described in the Constitution: being at least thirty-five-years old, a natural-born citizen, and a U.S. resident for at least fourteen years. Criminal convictions have not barred candidates in the past—and would not bar Trump—from running for President. As my colleague Amy Davidson Sorkin recently noted, “In 1920, Eugene V. Debs, a Socialist, ran for President from a prison cell in Atlanta, after being convicted of violating the Espionage Act of 1917, for speaking against military recruitment efforts. He got nearly a million votes.” Trump could get far more.
Those Supreme Court rulings were designed to empower voters, not prosecutors, to decide who can be elected President. For decades during the Cold War, federal prosecutors, F.B.I. agents, and politicians falsely smeared political candidates and civil-rights leaders as being Communists or subversives. Since Watergate, the Justice Department has strengthened rules that require prosecutors to keep investigations secret, and to not announce indictments at times when they can impact elections.
Garland has devoted his life to upholding those norms, but he must recognize that, a half century after Watergate, a new American political landscape exists. Now the best way for him to counter the former President’s false narratives and to create public trust in the Justice Department is to prioritize transparency over secrecy. Silence is not an option in the post-Trump era. Trump and his allies will take any opportunity to attack and discredit the Justice Department, the F.B.I., the January 6th committee, prosecutors in Georgia and New York, and anyone else who investigates the former President as engaging in a political “witch hunt.” Trump almost certainly received a copy of the search warrant and could release it publicly, but is unlikely to do so. Hours after announcing the raid, he began to use it as a fund-raising tool. Garland remained silent. Whatever may have been found in Mar-a-Lago, Justice Department officials apparently hope, will speak louder than Trump. ♦