Attorney General Merrick Garland just delivered — sort of — on the hopes of those who wanted more details about the recent FBI search of former President Donald Trump’s Florida residence.
The search warrant that was served to Trump on Monday, the “redacted Property Receipt listing items seized pursuant to the search,” and two documents referred to only as “Attachments A and B” were all requested to be unsealed by a federal magistrate judge on Thursday, as announced by Garland.
The public will soon learn more about this search as a result of this announcement, but they may not learn more than Trump does, since he has a copy of the search warrant. According to Garland, “Federal law, longstanding department rules, and our ethical obligations prevent me from providing further details” in regards to the search or any other ongoing investigations into Trump.
Republicans have spent much of the week criticizing the DOJ and demanding that it comment on the ongoing investigation, so these new developments come as something of a surprise. Senate Minority Leader Mitch McConnell (R-KY) released a statement suggesting the Justice Department is improperly withholding key details about this investigation. In the statement, McConnell demanded answers from Garland, saying that the country “deserves a thorough and immediate explanation of what led to” the search.
The former deputy assistant attorney general in the Justice Department, however, McConnell, almost certainly knows better. Lawyers at the Justice Department are prohibited by both internal policy and external rules from discussing active investigations in the media. These constraints are there for a reason, after all. They safeguard the Justice Department’s own investigations and prevent pre-charge defamation of suspects.
However, these restrictions on communication may serve a longer-term, more sinister purpose. Legislators looking to bolster Trump or the GOP can use the Justice Department’s relative silence to mislead the public into thinking the agency is up to no good.
I’ll just lay out the facts.
When a criminal investigation is still open, the Justice Department cannot disclose any information due to a number of rules and policies.
Let’s start with the Justice Manual, an internal document of the Department of Justice (DOJ) that lays out in excruciating detail the various rules and procedures that DOJ employees must abide by.
Workers at the Department of Justice are instructed in a policy manual to avoid public discussion of active criminal investigations.
The manual is fairly explicit in stating that “DOJ personnel shall not respond to questions about the existence of an ongoing investigation or comment on the nature or progress of it before charges are publicly filed.” However, there are circumstances where disclosure is allowed, as described in the manual: “when the community needs to be reassured that the appropriate law enforcement agency is investigating a matter or where release of information is necessary to protect the public safety.” However, neither of these caveats should be applied to the Trump investigation; for one thing, the “community” already knows that Trump is being investigated, thanks to widespread reporting and Trump’s own confirmation of the FBI’s search of his home.
Granted, the Justice Manual is just an internal policy document that spells out the rules and regulations that the Justice Department has for itself and its employees. Lawyers at the DOJ are required to follow certain external regulations regardless of internal directives. Legal counsel for the government “must not disclose a matter occurring before the grand jury,” as stated in Rule 6 of the Federal Rules of Criminal Procedure.
According to a May report in The New York Times, “federal prosecutors have begun a grand jury investigation into whether classified White House documents that ended up at former President Donald J. Trump’s Florida home were mishandled.” According to reports, the FBI raid on the Trumps’ home was related to that grand jury investigation. If this is the case, the Justice Department is limited in what it can say about the raid due to Rule 6.
To be fair, Rule 6 does not prohibit DOJ from disclosing any information at all about this search. Justice Department veteran Andrew Weissmann tweeted that Rule 6 shouldn’t prevent the department from disclosing the actual search warrant that was executed this week or “any part of the supporting affidavit that does not contain [grand jury] info.” (Usually, a warrant is obtained after a federal agent submits a sworn affidavit detailing the location(s) they plan to search, the items they expect to find, and their probable cause for believing that doing so will lead to the discovery of evidence of a federal crime.)
However, there is currently another restriction that prevents the warrant and affidavit from being made public. A federal court order has “sealed” these documents, so they cannot be released to the general public.
The Justice Department has now requested that the court make at least some of this information public, so that situation is likely to change soon. It is less clear whether the court will unseal the affidavit after requests from multiple media outlets and advocacy groups.
It’s worth noting that Donald Trump is the only person who could shed more light on what transpired during the FBI’s search. The individual being searched by federal agents will typically be given a copy of the search warrant (but not the affidavit) before the search is conducted. Garland confirmed on Thursday that Trump’s attorney Christina Bobb had received a copy on his behalf.
Specific criminal statutes that were allegedly violated will be made public in this warrant. At any time, Trump is at liberty to release the warrant he has in his possession.
The Justice Department’s silence on active investigations, and why that matters
If anyone has any doubts, the Justice Department does not discuss ongoing criminal investigations without good reason.
Even though “the courts in this country recognize a general right to inspect and copy public records and documents, including judicial records and documents,” lower courts have ruled that the government’s need to keep certain information about ongoing investigations secret can supersede this right. When there is a “substantial probability that the government’s on-going investigation would be severely compromised if the sealed documents were released,” as the US Court of Appeals for the 11th Circuit, which oversees federal cases in Florida, put it in one case, documents may be kept secret.
(This does not mean that the entire warrant affidavit in Trump’s case must be kept secret, but rather that it will remain under seal if it could jeopardize the DOJ’s investigation of Trump.)
There’s another good reason the Justice Department stays mum about investigations in progress: The practice is unfair to criminal suspects like Trump.
Trump has the right to a trial and a chance to prove his innocence if he is ever indicted for an alleged violation of a federal criminal law. If he doesn’t take a plea deal, the jury will decide whether he’s guilty or not based on the evidence presented. While a “not guilty” verdict would not prove Trump’s innocence per se, it would certainly help to dispel the lingering suspicion that follows anyone who has been accused of a crime.
When the Justice Department publicly announces a criminal investigation before any arrests have been made, it casts a shadow over the reputation of the person under investigation. Justice Department “long-standing and well-established traditions limiting disclosure of ongoing investigations” that might influence elections prevent prosecutors from “creating unfair innuendo to which an accused party cannot properly respond,” as former deputy attorneys general Jamie Gorelick and Larry Thompson wrote in a 2016 Washington Post op-ed.
Unless there are actual arrests made as a result of the investigation into Donald Trump, the Justice Department is likely to remain very silent about the matter. There is no intention to stonewall with this silence. It’s in line with the Department of Justice’s (DOJ) standard operating procedure for safeguarding itself and anyone facing federal criminal charges.
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