On Thursday, Attorney General Merrick Garland offered the first official account of Monday’s FBI raid on Donald Trump’s home at Mar-a-Lago in search of reportedly classified documents that Trump had taken from the White House when he left office, documents that he allegedly still had not turned back over to the government.
[Update, Aug. 11, 2022, at 9:42 p.m.: The Washington Post reported that classified documents relating to nuclear weapons were among the items FBI agents sought.] While Garland did not reveal many details, he did take a blowtorch to the GOP’s unhinged defenses of the former president and attacks on the Department of Justice over the past 72 hours.]
Garland pulled this off with a straightforward legal filing: The Department of Justice requested that the judge in Trump’s case unseal the search warrant and the FBI property receipt listing what was taken from Mar-a-Lago, “absent objection from the former President.”
This puts the onus on Trump and his lawyers—who for the past three days have unleashed fury against the FBI and gone so far as to suggest the bureau was “planting” evidence—to object in court to unsealing the documents in order to keep them secret. This immediately flips the script away from the saturation of “what is the DOJ hiding” media coverage of the past few days and raises the obvious question: If Trump objects to unsealing these documents, what is he hiding?
Indeed, Republicans like former Secretary of State Mike Pompeo and Senate Minority Leader Mitch McConnell have demanded that the DOJ provide immediate answers about the raid. Now the DOJ is saying that so long as the judge in question assents, they will immediately turn over answers the moment Trump relinquishes his rights to keep those answers secret and lets the DOJ publicize what this was about. If Trump surrenders his rights to keep this secret and the DOJ is asking the court to reveal it, then it seems like there would be little rationale for the judge to deny the motion. Magistrate Judge Bruce Reinhart has given Trump until Friday afternoon to notify the court whether he objects to the unsealing of the documents.
Ordinarily, the DOJ would not make this request. In order to protect the rights of people under investigation by the department—so as not to impugn subjects in the event that criminal charges are never filed—such information would normally be kept secret unless and until there was an indictment.
However, the Republican Party and its media allies have raised such hackles over the lack of information about this raid—with Trump in turn fundraising off of the noise—that apparently the DOJ thinks there is a clear “public interest” in releasing the documents.
“The Department filed the motion to make public the warrant and receipt in light of the former president’s public confirmation of the search, the surrounding circumstances, and the substantial public interest in this matter,” Garland announced matter-of-factly.
The accompanying motion to unseal the documents was similarly straightforward in its argument.
“Given the intense public interest presented by a search of a residence of a former President, the government believes [the] factors favor unsealing the search warrant, its accompanying Attachments A and B, and the Property Receipt, absent objection from the former President,” the motion read.
The motion was signed by acting U.S. Attorney for Southern District of Florida Juan Antonio Gonzalez and Jay Bratt, the chief of the counterintelligence and export control section at the Justice Department. This is notable because Gonzalez would have signed off on the warrant and Bratt—a top counterintelligence official—reportedly was among four investigators who previously visited Mar-a-Lago seeking to have Trump comply fully with a grand jury–issued subpoena for the confidential documents.*
Garland also sought to tamp down claims in the press that this was an overreaction to a minor document dispute, saying that he “personally approved the decision to seek a search warrant in this matter.” It has previously been reported by Newsweek that Garland had not signed off on the search, which would have been an extraordinary oversight. Garland has been noted for his excessive caution in his approach to politically charged law enforcement decisions, and the implication that he did not sign off made it look like the search may have been conducted by rogue actors over something trifling.
The Newsweek source, who is now shown to have been not telling the truth, indeed said as much himself:
The senior Justice Department source […] insists […] that Garland had no prior knowledge of the date and time of the specific raid, nor was he asked to approve it. “I know it’s hard for people to believe,” says the official, “but this was a matter for the U.S. Attorney and the FBI.”
FBI director Christopher Wray ultimately gave his go-ahead to conduct the raid, the senior Justice official says. “It really is a case of the Bureau misreading the impact.”
Almost certainly alluding to the previous efforts to get Trump to turn over the documents, reported by the New York Times earlier on Thursday, Garland added: “The Department does not take such a decision lightly. Where possible, it is standard practice to seek less intrusive means as an alternative to a search and to narrowly scope any search that is undertaken.”
Again, assuming the judge would agree to make the warrant public, the motion itself puts the entire impetus now on Trump and his legal team to keep the details of the search a secret.
“This matter plainly ‘concerns public officials or public concerns,’ … as it involves a law enforcement action taken at the property of the 45th President of the United States,” the court motion notes. “The public’s clear and powerful interest in understanding what occurred under these circumstances weighs heavily in favor of unsealing. That said, the former President should have an opportunity to respond to this Motion and lodge objections, including with regards to any ‘legitimate privacy interests’ or the potential for other ‘injury’ if these materials are made public.”
Your move, Donald Trump.
Correction, Aug. 12, 2022: This post originally misidentified a grand jury–issued subpoena as a grand jury–issued search warrant.