Re: The Downside for Garland in Speaking

[Trump Has Rats]

In article <t0rl4p$2koa6$5...@news.freedyn.de>
<governo...@gmail.com> wrote:
>
> I call bullshit on the basis for the warrant.
>

I did a post late last night (or was it earlier this morning)
regarding Attorney General Merrick Garland’s short press
statement on Thursday.

The Trump-FBI Whodunit Only Gets More Embarrassing

With more time to think about it and additional information
coming in from various places, I still think there is some
advantage for the Justice Department in having the AG break
protocol and make remarks. Coverage on the Trump-friendly side
is amusing this morning if you understand where we’re at. It is
running with “Trump demands release of the warrant.” I don’t
understand why you would demand that someone else release
something that it’s been completely within your power to release.

Trump has had the warrant and the inventory of items seized
since the FBI executed the search on Monday. He doesn’t need
court permission to publicize it. He could have done that at any
time. He could do it this very moment and at least be able to
say that he did it before the court did it. He only started to
“demand release of the warrant” when Garland said that the DOJ
would ask the court for permission to unseal it — which Garland
only did because Trump was talking about the search but
withholding the warrant . . . while some people close to Trump
were suggesting to media allies that he hadn’t seen it, and that
the FBI might have flouted their legal obligation to provide
Trump’s representatives with a copy of it.

All that said, however, there is a downside for Garland in
speaking.

What people most wanted to hear from the AG yesterday was why it
was supposedly necessary to proceed with a highly intrusive,
historically unprecedented search of a former president’s home
at this point. Was Trump uncooperative? Did the DOJ ask him for
something he refused to provide? Did the DOJ issue a subpoena
that he refused to comply with? Did something happen between the
last time the DOJ officials met with Trump and his team in June
that created an emergency requiring an unprecedented search
warrant in August?

And is Garland sure that the materials in Trump’s possession are
classified?

Last night, the Washington Post claimed that Trump had retained
top-secret nuclear-weapons intelligence. The report relies on
anonymous sources whom the paper does not even claim are agents
involved in the investigation. Trump has denied it (“Nuclear
weapons is a hoax, just like Russia, Russia, Russia was a
hoax”). Let’s assume for argument’s sake, though, that what the
government is leaking is true. Sure, it would be humiliating for
the former president if his defense is that he declassified
precious national-defense secrets just so he could keep them at
his house as a cool souvenir. But humiliation is very different
from criminal misconduct.

For the Justice Department to obtain a search warrant, it needs
a crime. The obvious crime here would be mishandling highly
classified information. Yet, if Trump declassified documents
while he was still president, then they no longer constitute
classified information that he could criminally mishandle. It
would be totally understandable that the Justice Department and
intelligence agencies would want the physical information back,
but getting it back by search warrant requires probable cause of
a crime, not a demonstration of governmental prudence.

This is important. There is a good deal of reporting about
Trump’s having likely violated the Presidential Records Act. But
the PRA is not a criminal statute. Violating it may be illegal,
but it’s not criminal.

That doesn’t make the PRA irrelevant. I believe the Justice
Department would take the position that, once the agents had a
valid warrant to search for classified information, the PRA
would justify their seizure of any government records (on the
principle that agents are not required to turn a blind eye to
illegality just because it is not covered by the search
warrant). Indeed, to repeat myself, I don’t believe this
escapade is about classified information — at least not
primarily; I believe the FBI and the DOJ are fishing for
evidence that could help them make a January 6 case against the
former president. But regardless of whether I am right about
that, the fact remains that they need probable cause of a crime
to get a warrant, and under the circumstances, we must presume
that the relevant crime is the mishandling of classified
information.

Of course, here, the suspect just happens to have been the one
official in all of government who could declassify whatever
information he chose to declassify. Even if the information at
issue is highly sensitive, top-secret, “special-access program”
intelligence, it would not be classified if he declassified it.

So here is what people are interested in: Did Trump do something
hostile or uncooperative which left Garland no reasonable
alternative but to seek a warrant — something worth blowing up a
230-year norm of not using hardball investigative tactics
against a former president of the United States? And is Garland
sure there was probable cause of a crime here that justify the
issuance of a search warrant?

If Garland had made no statement, we would assume affirmative
answers to these questions. We would assume that he just wasn’t
explicitly providing such answers because (a) the DOJ does not
speak publicly about investigations, and (b) he got a magistrate-
judge to sign the warrant, so he can bank on the court’s finding
of probable cause.

But he did speak. If you’re going to speak, you’ve got to
address the questions that actually matter to people. He didn’t.

In the meantime, Trump is speaking. He says he cooperated with
the FBI and the DOJ and is stunned that, after two months of
silence, they suddenly went to DEFCON 5 with a warrant to rifle
through his home. When Garland speaks but does not refute, or
even attempt to refute, what the former president has said
publicly, it is reasonable for people to deduce that he is not
in a position to rebut Trump’s claims.

One final, related point. The more one thinks about it, the more
incredible it seems that the White House knew nothing about
this. The Justice Department — in particular, those leaking on
its behalf — speaks as if the issue here were the peril the
nation would be in if the intelligence in Trump’s possession
fell into the wrong hands. That’s not a law-enforcement problem;
it’s a national-security problem. Even if Biden were right that
he must never “interfere” in the Justice Department’s work (and
he’s constitutionally illiterate on this point because the
Justice Department exercises his power as his delegate), we are
not talking here about political interference in the
administration of justice. We are talking about the defense of
the United States from hostile forces. That is one of the
president’s main duties — probably his most consequential and
solemn duty.

So how does Garland not tell Biden? How does Biden not call
Trump, behind the scenes and without political noise, and
beseech him to cooperate in returning and safeguarding this
intelligence, regardless of whether Trump had already
declassified it? How does Biden not call, say, Senator Lindsey
Graham and former secretary of state Mike Pompeo and say, “Look,
he listens to and trusts you guys. Go down there and talk to
him. Get him to help us get this stuff back where it belongs.
Let’s not turn this into a debacle.”

I can think of a million things they might have done short of a
search warrant. But I can’t think of a single scenario in which,
if the facts are as government sources claim they are, Biden
would not have been in the loop.

https://www.nationalreview.com/corner/the-problem-with-speaking/