“No innocent explanation.”

August 12, 2022

          Disinformation thrives in shadows and feeds on ignorance. Trump is a master of disinformation. In the days since the search of Mar-a-Lago, Trump has manipulated the lack of information about the search to imply that the DOJ and FBI acted corruptly in executing the warrant. He could have dispelled the disinformation by publishing two documents provided to his lawyers at the time of the search—the warrant and property receipt. Instead, for two days, Trump refused to release those documents as he continued to bash the DOJ and FBI—inciting at least one Trump follower to assault an FBI field office in Cincinnati.

          On Thursday, Merrick Garland announced that the DOJ had filed a motion to unseal the two documents in Trump’s possession—the warrant and the property receipt. The DOJ appropriately offered Trump an opportunity to oppose the motion to unseal the documents. Late Thursday evening, Trump “demanded” the “immediate release of the warrant”—a puzzling statement, since he has the unilateral ability to publish the warrant on his social media platform. NBC News, Trump Calls for ‘Immediate’ Release of Mar-A-Lago Warrant. Four media outlets also filed a motion to unseal the entire DOJ application for the search warrant, including the “probable cause” affidavit that details the DOJ’s justification for seeking the warrant.

          The high drama of Trump being “hoist with his own petard” by the DOJ’s motion was heightened to a fever pitch by a WaPo story claiming that the FBI was looking for documents “relating to nuclear weapons.” WaPo, FBI search of Trump's Mar-a-Lago related to nuclear documents, sources say.

          There is a lot to unpack in the day’s developments, and I won’t try to capture all of the details. In addition to the WaPo article above, the NYTimes published an article recounting the current state of play. See NYTimes, Garland Moves to Release Details on F.B.I. Search of Trump’s Home. The most important points from the Times article are (a) the DOJ served Trump with a grand jury subpoena for the return of the documents in June, and (b) the documents sought by the subpoena “were so sensitive, the Department had to act” by executing a search warrant.

          A summary of the day’s events not behind a paywall is in Slate, Merrick Garland press conference: DOJ motions to release search warrant against Donald Trump’s property. The original court filing by the DOJ to unseal the warrant and property receipt is here: CNN, READ: DOJ motion to unseal search warrant and property receipt for Trump's Mar-a-Lago home.

          With all of that as background, let’s discuss the significance of the day’s events.

          Merrick Garland’s decision to break his silence at long last was well worth the wait. In a brief but brilliant public statement, Garland managed to do the following:

•           He rose to the defense of the men and women of the FBI and DOJ on a day when a January 6th rioter attempted to break into an FBI field office with an assault rifle and was killed after a chase and shoot-out.

•           He refuted right-wing reporting that Garland was “not in the loop” on the issuance of the warrant by saying “I personally approved the request for the search warrant.”

•           He refuted right-wing conspiracy theories that claimed the FBI “planted” evidence by pointing out that Trump’s attorney was present during the search.

•           He stated (by implication) that the search took place only after Trump refused to comply with a subpoena, refuting the narrative that the search was precipitous.

•           He established that the DOJ attempted to maintain the confidentiality of the search, but that Trump violated that confidentiality.

•           He flipped the perception of which party is playing “hide the ball” by offering to make the information public, subject to Trump’s efforts to keep the information under seal.

          Garland (and his staff) responded to the lies and conspiracy theories in a professional, understated, but hard-hitting manner. Trump will lose this confrontation no matter what happens. If he allows the documents to be unsealed, the public will see that FBI agents seized documents marked “top secret”. The public will also learn that the FBI is investigating two crimes involving theft of presidential records and mishandling of classified information.

          Standing alone, all of the above should have given the GOP pause in its reflexive and self-destructive urge to defend Trump before knowing the facts. Sadly (and predictably), the GOP has not learned its lesson. After the WaPo story reported that the FBI had reason to believe Trump had taken materials relating to nuclear weapons, entertainers and Fox “News” were guffawing and asking a guest (Lara Trump) in mocking tones, “Have you ever seen a nuclear report lying around the pool at Mar-a-Lago, maybe at the lifeguard stand?”

          This is no laughing matter. As one commentator said, “There is no innocent explanation for refusing to return classified documents relating to nuclear weapons.” (I think it was Joyce Vance who said that, but I was driving at the time, so I am not positive.) Indeed, there is no innocent explanation for any private citizen refusing to return classified documents relating to nuclear weapons—especially when that private citizen is Donald Trump.

          The most likely outcome of the motion to unseal and Trump’s response is that it will result in tantalizing but ambiguous hints that will not settle the dispute over the search. Unless and until the DOJ indicts Trump or media outlets can persuade sources to speak “on the record,” we will endure another long period of not knowing the truth. But at the very least, Merrick Garland has provided Trump’s defenders fair warning that they need to stop their ridiculous claims of FBI weaponization and DOJ politicization.

          As to the threats of violence that are spreading on social media, the companies that run those platforms are failing miserably in enforcing their terms of use, which prohibit speech that threatens violence. Earlier this week, an account that appears to belong to the Cincinnati man who attacked the FBI office urged his followers to shoot FBI agents “on sight.”

          Given Trump’s late night “demand” that the court unseal the warrant, it appears that Trump will continue to fight the DOJ’s justification for the search. Given Garland’s response to Trump’s initial round of taunts, that seems like a bad strategy for Trump. But we will see how all of this turns out—probably sooner rather than later given Trump’s desire to litigate the search in the court of public opinion. The DOJ’s next comment on the subject may be an indictment.

Concluding Thoughts.

          The DOJ’s investigation of Trump is not “political” and no one “wins” or “loses” when justice is done. Rather, the Constitution and the rule of law are vindicated and bolstered so that future potential wrongdoers are deterred. But Garland’s announcement today did have a political impact though that was not its intent. Some in Trumpworld are re-thinking their rush to support Trump and the initial giddiness that the search was “good” for Trump’s 2024 prospects is quickly waning.

          Merrick Garland took his time in choosing to speak. But the attacks on the men and women of the FBI and DOJ were too much to bear. He rose to their defense by attacking conspiracy theories head-on and calling the bluff of congressional leaders demanding to know more about the circumstances of the search. It was a brilliant move motivated by noble intentions.

          The facts are unfolding so quickly I suspect I will be in touch over the weekend. So rather than my customary sign-off for the weekend, I will say (instead), “Talk to you soon!”