Politics

A Former DOJ Official Thinks Merrick Garland Could Say More

Merrick Garland approaches a podium.
Attorney General Merrick Garland arrives to deliver a statement at the Department of Justice on Thursday. Drew Angerer/Getty Images

When news broke last week that the FBI was searching Mar-a-Lago, it took a few minutes for former Justice Department prosecutor Ankush Khardori to process the headlines. He’s gotten used to the agency’s cautious approach to Donald Trump, and was stunned when reporters confirmed the DOJ sent in agents to retrieve classified documents from the former president’s home. There’s a whole constellation of investigations into or related to Trump, both his administration and his business. The search at Mar-a-Lago felt like an opportunity for federal prosecutors to engage with the public about their approach to the former president. Khardori worries that this opportunity is slipping through prosecutors’ hands. On Tuesday’s episode of What Next, I spoke with Khardori about why Justice Department officials are so hesitant to explain their moves and motivations when it comes to the potential misdeeds of the former president. Our conversation has been edited and condensed for clarity.

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Mary C. Curtis: Trump is no stranger to being investigated by a lot of folks, and he’s been playing cat and mouse with federal investigators for years. Does this action, this search change anything, move anything forward?

Ankush Khardori: There are several different investigative streams involving Trump. Referring to whatever it is the Justice Department is doing concerning Jan. 6, I’m not sure that this one is materially different just yet. I suspect that the principal objective of this search last week was to retrieve the documents. I’m a little skeptical of the notion of a prosecution here.

Why are you skeptical?

The handling of sensitive government information by high-level government officials is something that has been kicking around the public: Sandy Berger, Gen. David Petraeus, neither of whom served any actual prison time.

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I think a lot of people are analyzing this from all corners. What do the relevant statutes prohibit? Was this intentional or inadvertent? Is it particularly bad material that he shouldn’t have a personal interest in maintaining? We don’t have really much insight at the moment. We got this inventory of what was taken from Mar-a-Lago, but it was very high-level and pretty vague, as these things tend to be.

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Now might be a good time to go through how many open cases there are against Trump. Can you briefly run through them?

So at the federal level, we now have this document issue that precipitated the Mar-a -Lago search. There is also what we know about what the government—Congress and the Justice Department—is doing with respect to Jan. 6. As far as I know, there’s an active investigation being conducted by the Westchester County District Attorney’s Office into whether Trump misled local tax authorities about the value of a golf property there. There is the Manhattan district attorney’s investigation of the Trump Organization’s finances. And we have Georgia’s Fulton County District Attorney’s Office investigating some combination of Trump’s call to Secretary of State Brad Raffensperger and the efforts to create a “fake slate” of electors in the state.

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How far along is the DOJ on its investigations?

The documents issue is a relatively new investigation. The first report that precipitated all of this scrutiny was from back in January, related to the National Archives retrieving the boxes. There was a grand jury investigation opened sometime in the spring. And then, as we’ve seen from reporting over the summer, there was back and forth with the Justice Department and Trump’s lawyers. I would not assume that we’ll see anything in the way of charging decisions.

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With respect to the Jan. 6 investigation being conducted by the DOJ, that one remains a bit of a mystery. They have 800-plus cases relating to the rioters, but in terms of the focus beyond the rioters, it seems the department moved a little slowly last year in scrutinizing the conduct of people in the Trump White House and his campaign. Late last year, DOJ decided to focus in in particular on this alternate slate of electors issue.

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Then you have the Fulton County investigation, where there’s been quite a bit of activity very recently, including subpoenas to all of these electors, to Rudy Giuliani, and to Lindsey Graham. There have been disputes that are getting resolved against these people as they’re trying to fend off these subpoenas. That one is a bit of a wild card, because it does seem like that investigation is picking up steam and potentially reaching a point of making charging decisions. But a lot of it is outside of public view.

It sounds like the fake electors would be the most likely case to go to trial, perhaps because there’s a lot of action on it, as you said.

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Regarding which case I think is the most likely to return potential charges against Trump himself, I would tend to agree. One of the reasons is that this is a prosecutor who’s operating outside of the standard bounds of the Justice Department, so she has the flexibility to move differently than everyone else. But even if Fulton County somehow decides it’s going to criminally charge Trump, it’s not the same thing as the federal government criminally charging Trump, particularly if he wants to run for reelection. I think if Trump is actually running for reelection, things are going to get very messy, both legally and politically. The practicalities here are going to start mattering if these cases progress.

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The Department of Justice has made an effort to clear the air since the FBI searched the former president’s home at Mar-a-Lago. But you think federal prosecutors could do more to keep the public informed about this case since it is so consequential, and since Trump and his allies have tried to spin the situation.

I would like to have seen a little bit more disclosure about what precipitated the search. I can imagine that’s very, very sensitive. Then something about the status of the investigation. And more to the point what, if anything, has been going on with all these other investigations. I don’t think it’s been healthy, really, for the country to have been in this situation for the past year and a half. I don’t even think it’s really appropriate at this point for us to be operating in the dark here.

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Attorney General Merrick Garland has cited federal law and ethical obligations that prevent him from sharing too much about the search. Does that explanation have merit?

It has some merit, but none of those restrictions prohibit the sort of disclosure I’m talking about. The Justice Department has a media policy that says it generally does not comment on ongoing investigations. There is an explicit exception in that policy, if there is a basis or a reason to reassure the public that the department is investigating something. When there’s a terrorist attack or potential hate crime, it’s not unusual at all for the FBI or even the Justice Department itself to say, we are looking into this right for potential X, Y, and Z reasons. It doesn’t obligate you to keep the public updated on every twist and turn, but it apprises the public that you are looking at something that has understandably attracted attention. There are constraints on potential disclosures on the particulars of what’s happening in an investigation and certain material that the government may have obtained. But I think the notion that the government is fully constrained or prevented from commenting on an ongoing investigation is really overstated.

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How so?

Well, Garland himself demonstrated in his press conference last week that it’s not as true as many of the people who have been saying it would have you believe. He demonstrated one reason to comment, which is to help to ameliorate public confusion being caused by Trump himself.

In a lot of the news stories we have, when a “senior government official with knowledge of the investigation” is quoted, these sorts of disclosures may be coming from the DOJ in significant cases. The Justice Department will brief reporters off the record or on background. I did it once when I was at DOJ, because I wanted that person to get the story right and because it was important to the department. I went through protocols to do it.

These things happen. That’s just the reality of it. The government has more tools available than the typical “say nothing” mantra. Garland kind of suggested that he was seriously constrained. But he did leave room open for further disclosures as the investigation proceeds.

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