Is the rule of law finally closing in on Donald Trump? Or is Donald Trump’s assault on reality finally destroying the rule of law?
It was the phrase on everyone’s lips: a week ago Thursday, Merrick Garland, in demanding that Trump agree that the search warrant be unsealed, had “called Trump’s bluff.”
“We got you now, Trump!” came the gleeful chorus across the gamut of left-wing journalists and pundits. “If you don’t agree to release the warrant, Donald, you are obviously hiding something incriminating! But if you do agree to release the warrant, then all hell breaks loose – because Merrick Garland would never have approved or been able to obtain this search warrant without probable cause that there was evidence of a crime at Mar-a-Lago. So now we are going to find out something big… like that you stole nuclear launch codes, or that your shake-down of Zelensky was even worse than we thought, or maybe you snuck off with the transcript of the private Helsinki convo with Putin when he told you he had the pee-pee tape! There just has to be a gun smoking in all those boxes that Trump smuggled out of the White House!”
Yes, finally, after Trump evaded accountability in impeachments, grab-them-by-the-pussy tapes, paying off porn stars with campaign money, extorting a vital ally of the United States by demanding dirt on a political opponent under the threat of withholding taxpayer-funded military assistance, allegations of sexual assault by dozens of women, the likelihood that his company will be convicted on tax charges that is clearly implicit in the guilty plea of his company’s CFO, his violation of every emoluments clause ever written, his instigation a bloody coup against the United States government, and his egregious egging on a mob to murder his own Vice President, finally, someone was actually going to bring criminal charges against Donald Trump that were going to stick.
Take a chill pill, everyone.
No boxes came out labeled “Nuclear Launch Codes.” There was nothing on the FBI’s official summary of the items taken during the search marked “Vlad’s pee-pee tape.” There was material marked at the highest level of security clearance with the sexy name “TS/SCI” (Top Secret / Sensitive Compartmented Information) which should only be viewed at a secure Federal office – and which Mar-a-Lago most certainly is not.
But a funny thing happened on the way to the Presidential indictment. When Trump agreed to allow the search warrant to be made public, he called Garland’s bluff right back. Now, the physics have shifted, and all eyes are on Garland’s choice – to indict, or not to indict, a former President of the United States.
Now Garland is on defense. The Federal judge who authorized the search warrant is now demanding that the DoJ attempt to create a redacted version of the sealed affidavit that provided the legal rationale for the search, citing the public's "right to know." If released, such a document could endanger Garland’s sources, methods, and plans for further investigation. And after Garland had his one exceedingly brief press announcement, he retreated into silence, conceding the airwaves to Trump, Republicans, and Fox News to rip into the DoJ without rebuttal.
Will Garland push forward with an indictment of Donald Trump on one or more of the three potential crimes alleged in the search warrant, crimes that carry jail sentences of three to 20 years, with one including a disqualification from holding public office?
It is possible that Garland could simply claim victory for having forced the return of classified material to the United States, and not proceed with an indictment. But Garland must understand that he has already created an overwhelming expectation that he will proceed with a criminal indictment of Donald Trump.
Let’s review the bidding: Garland asked a Federal judge to approve a search warrant because there was probable cause to believe that evidence of one or more of three major crimes would be found at Mar-a-Lago. The resulting search appears to have produced that evidence. The central question now is whether the former President of the United States participated in one or more of the three crimes.
Unfortunately for the former President, he has already torpedoed his very best defense, which would have been to say over a year ago, “Do you really think I spend my time on moving details? Especially when I did not actually lose?” That plausible deniability has been shattered by what seems to be the primary among many weak explanations he has already offered for the existence of classified materials at Mar-a-Lago: Trump claims that he already declassified the documents prior to leaving office.
This is a pathetic assertion: there is no paperwork to support it, and CNN interviewed 18 former Trump White House officials and not a one recalls Trump issuing a “standing order” to declassify all materials that he took out of the West Wing to his private quarters. Several pointed out that such a “standing order” could not be practically executed given the paperwork required to declassify documents. At least one rather indelicately categorized Trump’s assertion as “bullshit.”
The document stand-off has existed for a year-and-a-half. During that period, Trump’s lawyer issued a document claiming that all relevant documents had been returned, which was proven by the FBI search to be a lie.
Then, this past Thursday, US Magistrate Judge Bruce Reinhart unsealed a “procedural document” related to the subpoena, which included the phrase “willful retention of national defense information,” which eagle-eyed legal experts conclude is very likely aimed at the former President. He is the person at Mar-a-Lago who did at one point have authorization to possess top-secret documents… therefore he is the only person who is in a position to “retain” them.
So it is now becoming very hard to see how Garland
could possibly justify not indicting Trump on charges that relate to
illegally holding government documents. It has been proven that they were at
Mar-a-Lago, Trump’s own public defense includes an acknowledgement that he was
aware the documents were there, and his assertion that they had been
declassified can easily be proven to be a deceit concocted after-the-fact to
attempt to wriggle away from legal responsibility. More important: the documents do not even have to be "classified" for this to be a
crime. The statute relates to wrongful possession of government property, period. The National Archives has the responsibility for determining what materials a President may deem "personal" and which are property of the United States of America. In this matter, the Trump "fog machine" is already working overtime: people are debating whether the documents were or were not "classified," which is irrelevant to the statutes in question.
What’s interesting is that when Trump loyalists and Fox News screamed bloody murder at the search warrant, and threats against FBI personnel suddenly mushroomed, Merrick Garland seemed to believe that releasing the search warrant would mitigate the problem. Implicit in unsealing the search warrant was a belief that once the people understand the gravity of this matter and the likelihood that the President of the United States committed a crime, they would immediately cease their hew and cry, and they would understand that the search warrant was justified.
Oh, Merrick, how naïve can you be? You do not understand Donald Trump and his ferociously loyal base. You may have called Trump’s bluff… but in so doing, you have unleashed the biggest tsunami of deceit yet, a powerful geyser of garbage that is, once again, Donald Trump’s essential communications strategy. Mr. Garland, you have to realize that you are playing one game, but Donald Trump is playing an entirely different game.
Yes, the ball is now very much in Garland’s court. The problem is that Garland may not realize what court that really is.
Garland is familiar with the type of court that has judges and juries, but he may not be at all that familiar with the court of popular opinion. The latter is where Donald Trump plays… and where Trump has a home-field advantage. Once upon a time, facts mattered in the courts Garland has roamed. But it is entirely possible – indeed, likely -- that Donald Trump’s court of public opinion has fully infiltrated our courts. In Donald Trump’s calculus, the issue is no longer whether facts carry the day in court, it is whether he has so thoroughly cemented the unquestioned loyalty of 30% to 35% of the population that no American jury of 12 citizens would ever convict Donald Trump.
Which is why we are currently witnessing a Manitoba blizzard of utter BS.
Trump is taking the debate directly to his loyalists, using his usual combination of posturing, obfuscating, victimization, playing on the ignorance of his base, and just plain making up crap. Garland is a meticulous man of ideals who respects Trump’s rights in court more than Trump himself. Trump is a charlatan who is out to make sure that there will be at least one die-hard Trumpster on any possible jury in America.
So Trump is casually plastering his loyal supporters with a smorgasbord of absurd justifications, inane explanations, legally preposterous rationales, and sophomoric mind-games that are perfectly calibrated to persuade Imperial Storm Troopers at the Mos Eisley spaceport. He will send these people into jury deliberation rooms stockpiled with a tonnage of unreasonable doubt.
Team Trump is spreading the word that the President has the power to declassify anything, so that -- by definition -- he had the power to declassify anything he took out of the White House. Uh, no, that is not true. Trump could have declassified a certain amount of material before he left the White House, but he did not. If, indeed, some of the documents found in Mar-A-Lago were classified material related to nuclear secrets, the President of the United States does not have the power to unilaterally declassify them.
Team Trump claims that the FBI had planted documents at Mar-A-Lago. This is a heinous hit-job on the integrity of people whose job is to enforce the laws of the United States of America, and is no doubt causal to the rapid emergence of attacks and threats to FBI personnel and buildings. But it is a time-honored Trump tactic dating back to January 6: incite MAGA crazies armed with AR-15s to attack patriotic intelligence agencies, government personnel, and even insufficiently loyal Republicans, all with the goal of intimidating people into submission.
Then there’s the old spin and reverse dunk: Trump predictably claimed that Barack Obama did the exact same thing, only worse. Trump's verbatim tweet: "President Barack Hussein Obama kept 33 million pages of documents, much of them classified. How many of them pertained to nuclear? Word is, lots!"
The actual word? Fabrication. The National Archives debunked Trump’s assertion in a heartbeat.
Then there are the Trumpublican enablers who race to say that Garland’s charges are on the orders of Biden in a purely political hatchet job. The sad truth is that if Barack Obama had done one one-hundredth of one percent of the illegality of Donald Trump, Republicans would have screamed bloody murder and the Proud Boys would have called for him to be lynched.
Republicans are saying that the fact Trump held classified information at Mar-a-Lago is not that big a deal, somehow oblivious to the fact that the mere presence of documents at Mar-A-Lago that Trump had not been authorized to take is – by definition -- a Federal crime.
My favorite? The Republicans who screech that a search warrant on a former President is unprecedented! The implication is that because something that has never been done in the past, it should never be done. The reason this search warrant is indeed unprecedented is because there has never been a President so corrupt and so unwilling to accede to legal requirements to surrender documents. Hey, Republicans… there was no search warrant back in 1974 because Richard Nixon surrendered the tapes when ordered to do so.
And to you Republicans who think that it is all just an unprecedented political hit job to destroy a political opponent by threatening jail time, may I remind you who chanted “lock her up” at political conventions?
The list of excuses will go on forever. Trump will claim that certain documents were taken by mistake. That there was a misunderstanding about others. That somebody else did it. That he did not authorize it.
Maybe he will simply explain that he ran out of time to flush all those documents down the toilet at the White House. Or that the toilets in Mar-a-Lago work better.
What do you think people who watch Fox News and OAN are hearing about this search warrant? That it was outrageous! Trump had been cooperating! He had turned over documents! That Joe Biden is “weaponizing” the DoJ to destroy political opponents!
Obfuscate. Instigate. Agitate. Litigate. Every day is a new TrumpGate.
What we are witnessing is Trump’s carpet bombing of Red State Republicans with any and every possible reason why they should stay blindly loyal to Trump. Given the ferocity of their loyalty to Trump, some of it – perhaps all of it – will stick. And that is all Trump is betting on: that his loyalists will buy the garbage, memorize it, and take it into the jury room,
Let’s simply assume that at some point in the not-too-distant future, Merrick Garland will issue an indictment of Donald Trump. Polls will be conducted, and this much is guaranteed – approximately one-third of the respondents will say that they are absolutely certain that Garland’s charges are unjustified, and that their minds cannot be changed, no matter what information comes out in a trial.
That is to say, roughly four out of every 12 jurors in the United States.
Four out of every 12 jurors will go into secret deliberations and tell the other jurors that a President can declassify any documents he wants. Or that Trump had been cooperating. Or that it is all a political hit-job.
In their effort to find twelve Americans who bring no bias to the jury room, the DoJ will scour jury pools for independents, political agnostics, the overtly apolitical, and some of the 100 million Americans who don’t even bother to vote. Good luck finding the impartial jury for this one, Mr. Garland. It’s not impossible. But it is a very, very risky bet… and Trump, Fox, and all the enablers are making the other bet, big time.
Yes, Attorney General Garland, Trump is playing a very different game from yours, and you must start to pay attention to it. You are lawyering through the courts. He is doing that, but he is also communicating to his people. Mr. Garland, you can’t just play one game… you must join both battles.
Some free advice to Mr. Garland:
Step up your communications game. We get it: you need to conduct your investigations in secrecy to protect witnesses and methods. But that is no reason why your department cannot have an official spokesman who is aggressively communicating when Donald Trump makes utterly deceitful and incendiary claims that FBI agents are "planting evidence.” When Republicans attack your processes, you have every right – indeed, you have an obligation – to counter, to defend, and to call out lies.
Communicate that the crimes that were discussed in the warrant are deadly serious. If you tune into Fox News to find out what the Republican bubble is hearing, you discover that their pundits and commentators are making these crimes sound like no big deal. “So he took a few boxes of his documents to Mar-a-Lago. When they asked him to put a padlock on the door, Trump did. What’s the big deal?”
Well, for starters, there is no reason on earth why Donald Trump should still possess top secret documents, and the fact that he is holding them in an insecure facility where they can be copied, stolen, or sold to the highest bidder is terrifying. For all we know, United States intelligence personnel are at grave risk of being identified because of Donald Trump’s sloppy self-indulgence.
But there is actually a bigger point: the issue is not
whether some of it contains nuclear secrets. The issue is not even whether the
material is classified or not. The issue is that the documents belong to the
people of the United States of America… not Donald Trump. Even if Donald Trump had declassified the
documents in a proper manner before leaving the White House, it is still a
crime for him to have them in his possession unless given that specific permission by the National Archives.
Sure, the violation of certain laws is more serious than others: we don’t incarcerate jaywalkers. But Merrick Garland’s silence is allowing Fox News to paint these laws as some trivial nuisance… a contrivance that allows Democrats to take Trump down. The DoJ needs to explain to people exactly what these laws are and why violating them can earn an ordinary citizen twenty years in the slammer.
And as of January 20, 2021, Donald Trump is just an ordinary citizen.
The requirement that you provide a redacted affidavit is an opportunity to communicate. We read about how the Justice Department is terrified that releasing the affidavit will compromise DoJ “sources and methods,” and will reveal their gameplan for future investigation. Their solution seems to be presenting a version of the affidavit that is so heavily redacted that it will look like pages of black ink.
Hey, DoJ, get creative. Why not propose to Judge Reinhart that you release a written high level summary that addresses the only questions the people really care about: (1) a summary of events that establish that a search warrant was necessary because of a lack of cooperation by Trump’s lawyers, (2) a plain-English summary of the laws that this lack of cooperation violates, and (3) who, exactly, has been involved in the lack of cooperation?
If you are going for the king, don’t inflict a flesh wound. Look, Mr. Garland, the minute the news of the search warrant hit the cable channels, the DoJ went from sleepyville to Def Con 3. There are those who wonder if the DoJ decided to play this particular card because of doubt that it will ever be able to successfully prosecute Donald Trump for his role in the January 6 insurrection, so it picked a lesser battle, but one where guilt and innocence was a black and white matter. Indeed, most of the charges that will be leveled against Trump – in this matter, and in his role in the January 6 Insurrection -- demand that the prosecution prove intent… which is a very tough standard. The most basic charge in the search warrant – possession – is the easiest to prove: there is no requirement to prove “intent” of any kind.
But we hope that Garland does not simply settle for the lowest hanging fruit. We hope that the DoJ realizes that Democrats – indeed, all thoughtful citizens – will not be content until Trump is held accountable for January 6. As serious as the crimes in the recent search warrant are, they are not as grave a threat to our democracy as Trump’s actions to incite an insurrection for the purpose of accomplishing a coup of our government.
Here’s where things stand: going forward, one of three things happen.
There is a chance that Garland brings charges and convicts
Trump. That is one possible outcome. That, of course, is the scenario in which
we witness AR-15-toting white nationalist militias hitting the streets with
violence that will make January 6 look like bad behavior at second grade
recess. But based on what we already know, that is the course of action that appears to be the one that serves Garland's vow for "equal justice under the law."
The second option: Garland brings charges but cannot convict Trump, simply because there is one or more Trump fanatics on the jury who have believed every word Team Trump has been spewing since the search warrant became public. In that case, Garland plays directly into Trump’s narrative of being a politically motivated Attorney General who tried and failed to bring down a political opponent by weaponizing the DoJ. By now, we all know how this particular game is played. Trump will equate a “not guilty” verdict as vindication, and proof that yet another legal proceeding against him has been revealed to be a witch hunt.
The third possible outcome is that Garland decides that the odds against a conviction are so high – or the consequences of conviction are so fraught with risk to our society -- that he chooses to not press charges.
And that is when Donald Trump’s assault on truth wins.
That is when the rule of law in the United States is replaced by the rule of opinion. The rule of the mob. The rule of violence.
We do not know what was in the boxes that were taken out of Mar-a-Lago.
But this much we know. We are long past the “end of the beginning.” With his search warrant, Merrick Garland announced that we have entered the endgame. We are at the beginning of the end.
Garland must take the battle to the courts, and to the court of public opinion. To fight with one hand tied behind one’s back is to lose.
In this "end game," the only question now is what, exactly, is going to "end" – the rule of law, or the rule of lies?
Will we be a society that respects the existence of
objective reality and truth? Or will we just devolve into the chaos of
unsupported opinion, overt disinformation, and rampant propaganda?
Will we be a nation of laws?
Or will we become an authoritarian nation dictated by Trump, his sycophants, his enablers, his blind loyalists, his propagandists, and Fox News?
The issue is no longer whether you are a conservative or a progressive or a Democrat or Republican.
The issue now at hand is the matter of Donald Trump vs. The Truth.
Heaven help us if the truth loses.
Jennifer Rubin's column in the Washington Post was "Merrick Garland faces a plethora of tough decisions" -- so you are in good company in considering the difficulties the DoJ faces when it comes to Trump. The one thing she adds is the wide variety of legal matters the DoJ could pursue, and the overlapping cases with state (NY) and local (NYC & Fulton County, GA) cases.ReplyDelete
The one observation I would add -- Merrick Garland is no stranger to the challenges of trying cases to juries. He was a prosecutor for the Marion Barry drug charges in the District of Columbia and supervised the Oklahoma City bombing cases and the decision to seek the death penalty.
Garland pledges to act "without fear or favor," and those who have known him throughout his career express confidence in the meticulous preparations, judicious choices in making prosecution decisions, and the development of complex, flexible strategies to pursue court decisions.